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PRESIDENT OBAMA’S EXECUTIVE OVERREACH 

ON IMMIGRATION 

HEARING 

BEFORE THE

COMMITTEE ON THE JUDICIARY 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED THIRTEENTH CONGRESS 

SECOND SESSION 

DECEMBER 2, 2014 

Serial No. 113–120 

Printed for the use of the Committee on the Judiciary 

( 

Available via the World Wide Web: http://judiciary.house.gov 
(II) 

COMMITTEE ON THE JUDICIARY 

BOB GOODLATTE, Virginia, Chairman 

F. JAMES SENSENBRENNER, JR., 

Wisconsin 

HOWARD COBLE, North Carolina 

LAMAR SMITH, Texas 

STEVE CHABOT, Ohio 

SPENCER BACHUS, Alabama 

DARRELL E. ISSA, California 

J. RANDY FORBES, Virginia 

STEVE KING, Iowa 

TRENT FRANKS, Arizona 

LOUIE GOHMERT, Texas 

JIM JORDAN, Ohio 

TED POE, Texas 

JASON CHAFFETZ, Utah 

TOM MARINO, Pennsylvania 

TREY GOWDY, South Carolina 

RAU ́ L LABRADOR, Idaho 

BLAKE FARENTHOLD, Texas 

GEORGE HOLDING, North Carolina 

DOUG COLLINS, Georgia 

RON DeSANTIS, Florida 

JASON T. SMITH, Missouri 

[Vacant] 

JOHN CONYERS, JR., Michigan 

JERROLD NADLER, New York 

ROBERT C. ‘‘BOBBY’’ SCOTT, Virginia 

ZOE LOFGREN, California 

SHEILA JACKSON LEE, Texas 

STEVE COHEN, Tennessee 

HENRY C. ‘‘HANK’’ JOHNSON, JR., 

Georgia 

PEDRO R. PIERLUISI, Puerto Rico 

JUDY CHU, California 

TED DEUTCH, Florida 

LUIS V. GUTIERREZ, Illinois 

KAREN BASS, California 

CEDRIC RICHMOND, Louisiana 

SUZAN DelBENE, Washington 

JOE GARCIA, Florida 

HAKEEM JEFFRIES, New York 

DAVID N. CICILLINE, Rhode Island 

SHELLEY HUSBAND, Chief of Staff & General Counsel 

PERRY APELBAUM, Minority Staff Director & Chief Counsel 
(III) 

C O N T E N T S 

DECEMBER 2, 2014 

Page 

OPENING STATEMENTS 

The Honorable Bob Goodlatte, a Representative in Congress from the State 

of Virginia, and Chairman, Committee on the Judiciary ................................. 1 

The Honorable John Conyers, Jr., a Representative in Congress from the 

State of Michigan, and Ranking Member, Committee on the Judiciary ......... 4 

The Honorable Lamar Smith, a Representative in Congress from the State 

of Texas, and Member, Committee on the Judiciary ........................................ 23 

The Honorable Zoe Lofgren, a Representative in Congress from the State 

of California, and Member, Committee on the Judiciary ................................. 24 

WITNESSES 

Ronald D. Rotunda, Doy and Dee Henley Chair and Distinguished Professor 

of Jurisprudence, Chapman University, Dale E. Fowler School of Law 

Oral Testimony ..................................................................................................... 36 

Prepared Statement ............................................................................................. 38 

Jay Alan Sekulow, Chief Counsel, American Center for Law and Justice 

Oral Testimony ..................................................................................................... 58 

Prepared Statement ............................................................................................. 60 

Thomas H. Dupree, Jr., Partner, Gibson, Dunn & Crutcher LLP 

Oral Testimony ..................................................................................................... 72 

Prepared Statement ............................................................................................. 74 

Marielena Hincapie ́, Executive Director, National Immigration Law Center 

Oral Testimony ..................................................................................................... 79 

Prepared Statement ............................................................................................. 81 

LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING 

Material submitted by the Honorable John Conyers, Jr., a Representative 

in Congress from the State of Michigan, and Ranking Member, Committee 

on the Judiciary ................................................................................................... 5 

Additional Material submitted by the Honorable John Conyers, Jr., a Representative in Congress from the State of Michigan, and Ranking Member, 

Committee on the Judiciary ................................................................................ 9 

Material submitted by the Honorable Zoe Lofgren, a Representative in Congress from the State of California, and Member, Committee on the Judiciary ......................................................................................................................... 27

Prepared Statement of the Honorable J. Randy Forbes, a Representative 

in Congress from the State of Virginia, and Member, Committee on the 

Judiciary ............................................................................................................... 34 

Material submitted by the Honorable Zoe Lofgren, a Representative in Congress from the State of California, and Member, Committee on the Judiciary ......................................................................................................................... 109 

Material submitted by the Honorable Zoe Lofgren, a Representative in Congress from the State of California, and Member, Committee on the Judiciary ......................................................................................................................... 117 

Material submitted by the Honorable Sheila Jackson Lee, a Representative 

in Congress from the State of Texas and Member, Committee on the Judiciary ......................................................................................................................... 145 
Page

IV 

Material submitted by the Honorable Zoe Lofgren, a Representative in Congress from the State of California, and Member, Committee on the Judiciary ......................................................................................................................... 151 

Material submitted by the Honorable Zoe Lofgren, a Representative in Congress from the State of California, and Member, Committee on the Judiciary ......................................................................................................................... 162 

Material submitted by the Honorable Ted Deutch, a Representative in Congress from the State of Florida, and Member, Committee on the Judiciary ... 172 

APPENDIX 

MATERIAL SUBMITTED FOR THE HEARING RECORD

List of Material submitted by the Honorable Zoe Lofgren, a Representative 

in Congress from the State of California, and Member, Committee on the 

Judiciary ............................................................................................................... 189 

Prepared Statement of the National Council of Asian Pacific Americans .......... 190 

Prepared Statement of Dorotea Mendez, Community Leader, Texas Organizing Poject (TOP) .............................................................................................. 191 
(1) 

PRESIDENT OBAMA’S EXECUTIVE 

OVERREACH ON IMMIGRATION 

TUESDAY, DECEMBER 2, 2014 

HOUSE OF REPRESENTATIVES

COMMITTEE ON THE JUDICIARY

Washington, DC. 

The Committee met, pursuant to call, at 1:52 p.m., in room 2141, 

Rayburn House Office Building, the Honorable Bob Goodlatte 

(Chairman of the Committee) presiding. 

Present: Representatives Goodlatte, Sensenbrenner, Coble, Smith 

of Texas, Chabot, Bachus, Issa, Forbes, King, Franks, Gohmert, 

Jordan, Poe, Marino, Gowdy, Labrador, Farenthold, Holding, Collins, DeSantis, Smith of Missouri, Conyers, Nadler, Scott, Lofgren, 

Jackson Lee, Cohen, Johnson, Pierluisi, Chu, Deutch, Gutierrez, 

Bass, Richmond, DelBene, Garcia, Jeffries, Cicilline. 

Staff Present: (Majority) Shelley Husband, Chief of Staff & General Counsel; Branden Ritchie, Deputy Chief of Staff & Chief Counsel; Allison Halatei, Parliamentarian & General Counsel; George 

Fishman, Counsel; Kelsey Deterding, Clerk; (Minority) Perry 

Apelbaum, Minority Staff Director & Chief Counsel; Danielle 

Brown, Parliamentarian; and Tom Jawetz, Counsel. 

Mr. GOODLATTE. Good afternoon. This hearing of the Judiciary 

Committee will come to order. Without objection, the Chair is authorized to declare recesses of the Committee at any time. 

We welcome everyone to this morning’s hearing on President 

Obama’s executive overreach on immigration, and I will begin by 

recognizing myself for an opening statement. But I also want to 

point out to the Members and to the audience in attendance today, 

you are all welcome to be here, but Rule 11 of the House rules provides that the Chairman of the Committee may punish breaches of 

order and decorum by censure and exclusion from the hearing. 

President Obama has just announced one of the biggest constitutional power grabs ever by a President. He has declared unilaterally that by his own estimation almost 5 million unlawful immigrants will be free from the legal consequences of their lawless actions. Not only that, he will in addition bestow upon them gifts 

such as work authorization and other immigration benefits. This, 

despite the fact that President Obama has stated over 20 times in 

the past that he doesn’t have the constitutional power to take such 

steps on his own and has repeatedly stated that ‘‘I’m not a king.’’ 

We will now ask that the video be rolled. 

[Video shown.] 
2 

Mr. GOODLATTE. As The Washington Post’s own fact checker concluded, ‘‘Apparently he’s changed his mind.’’ President Obama admitted last week that ‘‘I just took an action to change the law,’’ 

and, I should add, a jewelled crown worthy of King James of England who precipitated the glorious revolution by dispensing with 

the laws passed by parliament. 

The Constitution is clear. It is Congress’ duty to write our Nation’s laws, and once they are enacted, it is the President’s responsibility to enforce them. Article II, Section 3 of the Constitution requires the President to ‘‘take care that the laws be faithfully executed.’’ President Obama wants a special pathway to citizenship for 

11 million unlawful immigrants and without any assurance that 

our Nation’s immigration laws will be enforced in the future, and 

he is upset that Congress won’t change America’s immigration laws 

to his liking. Thus, he has decided to act unconstitutionally, under 

the guise of ‘‘prosecutorial discretion.’’ 

While law enforcement agencies do have the inherent power to 

exercise prosecutorial discretion, the authority as to whether to enforce or not enforce the law against particular individuals, this 

power must be judiciously used. Clinton administration INS Commissioner Doris Meissner told her agency that prosecutorial discretion ‘‘is a powerful tool that must be used responsibly’’ and that 

‘‘exercising prosecutorial discretion does not lesson the INS’ commitment to enforce the immigration laws to the best of our ability. 

It is not an invitation to violate or ignore the law.’’ 

Even President Obama’s Department of Homeland Security Secretary Jeh Johnson has admitted to the Committee that there are 

limits to the power of prosecutorial discretion and that ‘‘there 

comes a point when something amounts to a wholesale abandonment to enforce a duly enacted constitutional law that is beyond 

simple prosecutorial discretion.’’ The Obama administration has 

crossed the line from any justifiable use of its authority to a clear 

violation of his constitutional responsibility to faithfully execute the 

laws. 

There is a difference between setting priorities, focusing more resources on those cases deemed more serious, and setting enforcement-free zones for millions of unlawful aliens. By boldly proclaiming that there will be no possibility of removal for millions of 

unlawful aliens, President Obama eliminates entirely any deterrent 

effect our immigration laws have. He states plainly that those laws 

can be ignored with impunity. Such actions will entice others 

around the world to come here illegally, just like his Deferred Action for Childhood Arrivals program encouraged tens of thousands 

of unaccompanied alien minors and families from Central America 

to make the dangerous trek to the United States. 

The President relies on a memo prepared by his Justice Department’s Office of Legal Counsel to proclaim that his actions are constitutional, but that very memo finds that, ‘‘Immigration officials’ 

discretion in enforcing the laws is not unlimited. Limits on enforcement discretion are both implicit in and fundamental to the Constitution’s allocation of governmental powers between the two political branches.’’ 

The memo admits that ‘‘the executive cannot under the guise of 

exercising enforcement discretion attempt to effectively rewrite the 
3 

laws to match its policy preferences.’’ And the memo quotes the Supreme Court’s Heckler v. Chaney decision in stating that the executive branch cannot, ‘‘consciously and expressly adopt a general policy that is so extreme as to amount to an abdication of its statutory 

responsibilities.’’ 

The memo in fact is an indictment of President Obama’s actions. 

The President also mistakenly claims that his actions are nothing 

new. It is true that previous Presidents of both parties have provided immigration relief to groups of aliens, sometimes themselves 

abusing the power of prosecutorial discretion. However, usually the 

actions were based on emergencies in foreign countries, thereby relying upon the broad constitutional power given to a President to 

conduct foreign affairs. 

For example, Chinese students were protected from deportation 

after the Tiananmen Square massacre in 1989 and Haitian orphans who were in the process of being adopted by U.S. citizens before the devastating Haitian earthquake of 2010 were granted humanitarian parole to come to the U.S. What about President 

George H.W. Bush’s Family Fairness policy, which the White 

House cites to justify his power grab? Size and scope matter, and 

only about 80,000 aliens applied for that program. 

As to the White House’s claim that it covered more than 1.5 million aliens, The Washington Post fact checker concluded that, ‘‘The 

1.5 million figure is too fishy to be cited by either the White House 

or the media. Indeed, the 100,000 estimate that the INS gave on 

the day of the announcement might have been optimistic.’’ The 

Washington Post assigned the White House claims three 

Pinocchios. 

Without any crisis in a foreign country to justify his actions and 

in granting deferred action to a totally unprecedented number of 

aliens, President Obama has clearly exceeded his constitutional authority. No President has so abused and misused the power of prosecutorial discretion as has President Obama. 

By acting lawlessly and assuming legislative power, the Obama 

administration is driving full speed ahead to a constitutional crisis, 

tilting the scales of our three-branch government in his favor and 

threatening to unravel our system of checks and balances. President Obama has entered the realm of rewriting the laws when he 

can’t convince Congress to change them to match his personal 

taste. 

As law professor David Rubenstein has written, ‘‘The more 

broadly or generally a systematic policy applies, the more it takes 

on the hue of law.’’ Rather than working constructively with the 

new men and women Americans elected to represent them in Congress, the President is making his relationship with Congress increasingly toxic by unconstitutionally acting on his own. Tragically, 

President Obama’s shortsighted actions have further set back congressional efforts to enact legislation to reform our broken immigration system. 

I look forward to today’s hearing and the testimony of our eminent witnesses. And now I am pleased to yield to the gentleman 

from Michigan, the Ranking Member of the Committee, Mr. Conyers, for his opening statement. 

Mr. CONYERS. Thank you. 
4 

Ladies and gentlemen—— 

[Disturbance in hearing room.] 

Mr. GOODLATTE. Presently we do not have order in the hearing 

room. Members of the audience must behave in an orderly fashion 

or else they will be removed from the hearing room. The Capitol 

Police will remove the disruptive members from the audience immediately. The Capitol Police will remove the members of the audience from the hearing room. 

The Chairman apologizes to the gentleman from Michigan for the 

interruption, but he is now advised to proceed with his opening 

statement without penalty for the delay in starting. 

Mr. CONYERS. Mr. Chairman and Members of the Committee and 

those who have joined us here this afternoon in the House Judiciary Committee, I would respectfully disagree with a number of assertions by our Chairman, Mr. Goodlatte. 

President Obama did not change the law. He acted within the 

law consistent with the Constitution and past precedent. Now, I 

have not noticed that there were many constitutional law professors on the Committee, and I am certain that when President 

Obama decided 2 weeks ago to use his authority under existing law 

to do what he can to fix our broken immigration system, I could 

have not been more pleased. 

I defy any of my colleagues on this Committee or anyone in Congress to tell me our immigration system is not broken. We know 

that it is. But I am disappointed that this Congress, like a number 

of them before it, has done nothing to fix the problem. Republican 

leaders in the House won’t allow us to vote on a bipartisan bill, S. 

744, that passed the Senate last year with 68 votes out of 100. This 

Committee has marked up a series of bills, each one of them less 

palatable than the next, but hasn’t even reported them to the floor. 

And so I would urge that you consider that the only bills that 

we have seen on the floor would have deported dreamers and the 

parents of United States children denied basic protections to children fleeing violence and persecution. 

Now, faced with this congressional inaction, the President of the 

United States decided it was time to take action. The President’s 

reforms will help to secure the border, focus our resources on deporting felons, not families, and require undocumented immigrants 

to pass a criminal background check and pay for their fair share 

of taxes in order to register for temporary protection from deportation. Now these actions will keep millions of families with United 

States citizen children from being torn apart, families led by hardworking mothers and fathers. And finally, these actions are not 

only appropriate, but they are lawful. There is a great deal of information available publicly to support the President. 

On November 20, eleven prominent legal scholars wrote a letter 

explaining the President’s action, and I quote, ‘‘explaining that the 

President’s actions are within the power of the executive branch 

and that they represent a lawful exercise of the President’s authority.’’ I ask unanimous consent to include that in the record. 

Mr. GOODLATTE. Without objection, it will be made a part of the 

record. 

[The information referred to follows:] 
5 
6 
7 
8 

Mr. CONYERS. Thank you. 

The letter was signed by a former head of the Department of 

Justice Office of Legal Counsel and a person who worked in the solicitor general’s office. It was signed by liberal professors like Laurence Tribe and conservative professors like Eric Posner. Five days 

later, 135 immigration law professors echoed that conclusion and 

provided substantial constitutional, statutory, and regulatory authority for these actions. That letter also reviews the historical 

precedent that support the President’s move. And I ask unanimous 

consent that the letter from 135 immigration professors be included 

in the record. 

Mr. GOODLATTE. Without objection, it will be made a part of the 

record. 

[The information referred to follows:] 
9 
10 
11 
12 
13 
14 
15 
16 
17 
18 
19 
20 
21 
22 
23 

*The submitted material is not reprinted in this hearing record but is on file with the Committee, and can be accesssed at http://www.justice.gov/sites/default/files/olc/opinions/attach 

ments/2014/11/20/2014-11-19-auth-prioritize-removal.pdf 

Mr. CONYERS. Thank you. 

As people who were once charged with providing legal counsel to 

the government on this precise question, they write that, ‘‘We have 

all studied the relevant legal parameters and wish to express our 

collective view that the President’s actions are well within his legal 

authority.’’ And of course, the Administration requested a formal 

opinion by the Office of Legal Counsel and made the document 

public nearly 2 weeks ago, and I ask unanimous consent to include 

in the record the Office of Legal Counsel opinion.* 

Mr. GOODLATTE. Without objection, it will be made a part of the 

record. 

Mr. CONYERS. Thank you again. 

And of course, the Administration requested a formal opinion by 

the Office of Legal Counsel and made this document public nearly 

2 weeks ago. 

Now, I know that many Members on the other side of the aisle 

are not pleased about the President’s decision. We continue to hear 

calls for shutting down the government. Some have even talked 

about censoring the President or suing the President or even worse. 

But it seems to me, ladies and gentlemen, that the majority now 

has a choice. They can do what we were elected to do. They can 

come to the table and work to pass a real immigration reform bill. 

They can hold a vote. And that is exactly what I am prepared to 

do today. 

I thank the Chairman for his tolerance, and I yield back any 

time that may be remaining. 

Mr. GOODLATTE. The Chair thanks the gentleman and now recognizes the gentleman from Texas, Mr. Smith, for his opening statement 

Mr. SMITH OF TEXAS. Thank you, Mr. Chairman. I also want to 

thank Mr. Gowdy, the gentleman from South Carolina, for yielding 

me his time. 

[Disturbance in hearing room.] 

Mr. GOODLATTE. The Committee is not in order. The Capitol Police will remove the disruptive members from the audience immediately. You may leave now and the Capitol Police will escort you 

out as soon as they return. 

The gentleman from Texas is recognized. 

Mr. SMITH OF TEXAS. Thank you, Mr. Chairman. 

Before he took office, President Obama swore an oath to ‘‘preserve, protect, and defend the Constitution of the United States.’’ 

Yet he is now taking executive action to legalize millions of illegal 

immigrants all on his own, contrary to the Constitution. President 

Obama should remember his oath of office to uphold all laws, including immigration laws. 

This Administration is undermining the separation of legislative 

and executive powers that our Founders wrote into the Constitution to prevent tyranny. And President Obama is violating the Constitution, which explicitly reserves immigration policy for Congress. 

Article I, Section 8, Clause 4 of the Constitution provides that Congress shall have power to ‘‘establish a uniform rule of naturaliza-
24 

tion.’’ The Supreme Court has long found that this provision of the 

Constitution grants Congress full power over immigration policy. In 

addition, by suspending the enforcement of our immigration laws 

against nearly half the illegal immigrants in the United States, 

President Obama is violating his constitutional obligation to take 

care that the laws be faithfully executed. 

President Obama previously described the limitations that the 

Constitution places on his role as President. He has explicitly stated many times, as the Chairman noted, that he does not have the 

power to grant executive amnesty without the authorization of 

Congress. For instance, on March 28, 2011, he stated that, ‘‘With 

respect to the notion that I can just suspend deportations through 

executive order, that’s just not the case, because there are laws on 

the books that Congress has passed . . . The executive branch’s job 

is to enforce and implement those laws.’’ 

And constitutional scholars agree. Constitutional law professor 

John Hill of the Indiana University School of Law writes that, 

‘‘There is a word for the President’s plan to issue an executive 

order granting residency status for up to 5 million undocumented 

aliens now living in the U.S.: unconstitutional.’’ This is unquestionably law making. President Obama has now apparently forgotten 

what any first-year law student understands: that the President 

cannot make a law without the consent of both houses of Congress. 

Constitutional law professor Josh Blackman of the South Texas 

College of Law writes, ‘‘It cannot be the rule of law that the President can create arbitrary criteria of where the law will not apply 

and then exempt anyone who meets those criteria. This is the very 

type of a broad policy against enforcement that is so extreme as to 

amount to an abdication of the President’s statutory responsibilities.’’ 

And the American people themselves are opposed to President 

Obama’s latest executive amnesty. Despite the heavy media bias in 

favor of amnesty, a recent NBC News/Wall Street Journal poll 

found that Americans oppose his executive amnesty by 48 percent 

to 38 percent. 

The American people know the President’s executive amnesty 

grants work permits to millions of illegal immigrants which hurts 

many hard-working Americans who struggle to find full-time work 

and good paying jobs. The Obama administration has placed the interest of illegal immigrants above the needs of millions of unemployed and underemployed Americans. This amounts to a declaration of war against American workers. 

The Constitution is not a technicality. It is the document that 

has preserved our freedoms for more than two centuries. Ever 

American should be very concerned about President Obama’s violating the Constitution and not enforcing the laws of our Nation. 

Thank you, Mr. Chairman, and I will yield back. 

Mr. GOODLATTE. The Chair thanks the gentleman and is pleased 

to recognize the Ranking Member of the Subcommittee on Immigration and Border Security, the gentlewoman from California, Ms. 

Lofgren, for her opening statement. 

Ms. LOFGREN. Thank you, Mr. Chairman. 

When President Obama spoke from the East Wing of the White 

House 2 weeks ago about the steps he would take to improve our 
25 

broken immigration system, he was responding to loud and sustained calls for action from people all over the country. He can’t 

change the law, but he can take certain actions within the law. 

The President recognized what we all know: Our immigration 

system is badly broken. Millions of families face the threat of separation by deportation every day, parents from children, husbands 

from wives. Entrepreneurs and highly skilled immigrants from 

around the world want to drive innovation and create jobs and opportunities here, but instead we erect barriers and make them go 

elsewhere to create their companies. Farmers rely on the work of 

undocumented immigrants to support their industry. We all rely on 

their food. I was thinking with my family at Thanksgiving how 

much we have to be grateful for, but I’m not grateful that the farm 

workers who put that food on our table are living in fear. 

Now, before I entered public service, I practiced and taught immigration law, and throughout my 20 years in Congress I have 

worked across the aisle to enact sensible immigration reforms, and 

we have come close several times. In 2006, the Senate passed a bipartisan bill, but the House Republicans squandered the opportunity to close the deal and instead passed an enforcement-only 

bill. 

Last year the Senate again passed a bipartisan immigration reform bill that brought historic adversaries, the Chamber and the 

AFL-CIO, growers and farm workers, everybody together with a 68 

vote in the Senate, and again we did nothing with that opportunity 

here on the House side. In fact, I was part of our own group of 

eight here in the House where we tried to craft a bipartisan House 

bill. We did actually write a bill, but in the end we were unable 

to move forward. 

So it was only in the face of congressional inaction that the 

President decided to do something. He recognized there are costs 

to doing nothing, and he looked for opportunities that are permitted in current law to avoid some of the costs. There are many 

things the President can’t do to fix our immigration system, and 

nothing the President did either alleviates the need for legislative 

action or prevents Congress from acting. 

Now, the focus of the President’s legal authority is allegedly the 

topic of this hearing, and I think it’s important to remember that 

the President announced reforms in many different parts of the immigration system, including a new strategy to focus enforcement on 

the southern border, pay reforms for ICE personnel, several different efforts to make the immigration system work better for entrepreneurs. I haven’t heard anybody complaining about those efforts of the President. No, it is only about the families of American 

citizen children. And this talk of executive overreach really is about 

deporting, I think, the parents of U.S. citizen children, and I think 

it’s a darn shame. 

By this point, much has already been said about the legal authority going back to really Eisenhower in the 1950’s. Every President has used the similar or same authority in the immigration 

context. The authority stems from the President’s constitutional 

duty to take care that the laws be faithfully executed. In Heckler 

v. Chaney, the Supreme Court explained that this duty does not require the President to act against each technical violation of law, 
26 

and when the Supreme Court in Arizona v. the United States 

struck down the majority of Arizona’s SB 1070 law, the court specifically reaffirmed that, ‘‘broad discretion’’ exercised by Federal immigration officials extend to ‘‘whether it makes sense to pursue removal at all.’’ 

In 1999, Members of the Congress from both parties, including 

Members who still serve on this Committee, wrote to then Attorney 

General Janet Reno and asked her to issue specific instructions to 

guide in the use of prosecutorial discretion, and several years later 

Congress in the Homeland Security Act specifically directed the 

Secretary of Homeland Security to establish national immigration 

enforcement policies and priorities. That is precisely what Secretary Johnson has done. 

Now to the Family Fairness program, which serves as an important historical precursor to the Deferred Action for Parental Accountability program. President Reagan’s Family Fairness program 

was announced at a 1987 hearing before the House Immigration 

Subcommittee and it offered protection from deportation to certain 

spouses and children of persons who were legalized in the 1986 act. 

When the program was expanded under George H.W. Bush in 

1990, the INS Commissioner estimated that as many as 1.5 million 

people would be eligible for protection from deportation and work 

authorization. 

I heard the Chairman’s comment about Pinocchios in The Washington Post, but I recently discovered two documents that I would 

ask unanimous consent to put into the record. The first is the decision memo that announced the Family Fairness policy dated February 8, 1990, where the Department estimates that the Family 

Fairness policy provides voluntary departure and employment authorization to potentially millions of individuals, and the other document, also dated February 8, 1990, which indicates that the intention or expectation is that greater than 1 million IRCA-ineligible 

family members will file for the benefit. 

Mr. GOODLATTE. Without objection, those documents will be 

made part of the record. 

[The information referred to follows:] 
27 
28 
29 
30 
31 
32 
33 

Ms. LOFGREN. Now, when then Commissioner McNary stated in 

1990 that the program would begin, he said, ‘‘It is vital that we enforce the law against illegal entry. However, we can enforce the law 

humanely. To split families encourages further violations of the law 

as they reunite.’’ He understood that a smart enforcement strategy 

can also be a humane enforcement strategy, and that is no different than today. 

Now, if there is one key difference between the Family Fairness 

program and the deferred action program announced by the President last month, it’s that Presidents Reagan and Bush offered protections to people who were knowingly and intentionally denied 

protection by Congress when they passed the 1986 act. By contrast, 

the President is now acting in the face of historic intransigence by 

House Republicans who will, if no action is taken by the end of this 

month, have wasted two opportunities in 8 years to advance immigration reform bills. 

The President’s actions are lawful. They are also smart because 

they will allow DHS to focus limited resources on serious criminals, 

recent arrivals, and gang members. Finally, they are consistent 

with basic American values like accountability, family unity, and 

compassion. 

I would note that H.R. 15 is sponsored by 201 Members, both 

Democrats and Republicans. There is still time to take this bill to 

the floor for a vote, and I hope that Republicans will do so. 

And finally, I just want to respond very briefly to the argument 

in the video that we saw of the President making various comments about the limits of his authority. I guess if the President had 

said multiple times that 5 plus 5 equals 15 and then he finally says 

5 plus 5 equals 10, he would not be wrong when he finally said 5 

plus 5 equals 10. 

Second, the timing of the President’s statements were important. 

All of those statements were made before March. 

Mr. ISSA. Mr. Chairman, how many finallys can we have? We are 

going to run out of time here shortly. 

Mr. GOODLATTE. The Chair is giving some leniency because the 

Chair’s own opening statement was in excess of 5 minutes. 

Ms. LOFGREN. I did note that and I—— 

Mr. GOODLATTE. The gentlewoman can conclude. 

Ms. LOFGREN. I am almost through. I would just note that those 

statements were made before the President asked the Secretary of 

Homeland Security to do a complete review of the immigration system to see what could be fixed administratively, which resulted in 

his memorandums and the formal opinion by the Office of Legal 

Counsel. 

And finally, as we will see throughout this hearing, the legal 

question isn’t even a close one. The President has clear legal authority to defer removals when it is in the national interest. Chief 

Justice Roberts reaffirmed that principle just 2 years ago. Our immigration laws recognize this authority. Past Presidents have used 

this authority regularly. Our President is doing so now, and I for 

one am grateful that he is. And I yield back. 

Mr. GOODLATTE. The Chair thanks the gentlewoman. 

Without objection, additional Members’ opening statements will 

be made a part of the record. 
34 

1http://ojjdp.gov/ojstatbb/ezaucr/asp/ucrldisplay.asp. 2http://www.bop.gov/about/statistics/statisticslinmatelsentences.jsp. 3http://www.justice.gov/sites/default/files/olc/opinions/attachments/2014/11/20/2014-11-19-authprioritize-removal.pdf. 

[The prepared statement of Mr. Forbes follows:] 

Prepared Statement of the Honorable J. Randy Forbes, a Representative in 

Congress from the State of Virginia, and Member, Committee on the Judiciary 

Mr. Chairman, if you didn’t enforce the rules of this Committee, people would 

break them as we have seen here today. More people would break the rules during 

the next hearing and even more the hearing after that. Soon those that strictly followed the rules will wonder if they should continue to do so if there are no consequences for breaking the rules and if they are treated the same as those who 

break the rules. 

If you didn’t enforce the rules, there would be no order. There would be no framework for conducting the business of the Committee. 

Just weeks ago, we witnessed a staggering instance of non-enforcement. The 

President of the United States chose to act unilaterally to stop enforcement of our 

Nation’s immigration laws. In 2012, he stopped enforcement of the law for children 

brought into the country illegally by their parents. 

Now, he has stopped enforcement of the law for roughly 4 million more people 

living in this Nation illegally. 

Meanwhile, we have people who have followed the rules—some waiting for 

years—to enter this country lawfully with the hopes of gaining legal status or ultimately citizenship. What incentive do people have to continue to do this? 

Continued non-enforcement of the law will only lead to more of the same. The 

president has a constitutional duty to ensure that the laws of the United States are 

faithfully executed. Blatantly choosing to abdicate this duty and refusing to enforce 

the law rewards those that broke our laws, harms those that chose to come legally, 

and undermines the constitutional framework upon which this Nation was built. 

Further, if the president refuses to enforce our immigration laws, he could choose 

not to enforce our property or criminal laws as well. 

Under the precedent set by President Obama, a president could also unilaterally 

decide not to prosecute any of the 1.6 million people arrested annually for federal 

property crimes 1, choosing instead to focus federal resources on violent crimes. 

Under President Obama’s new precedent, a president could also grant prison amnesty to those 30,000 people who would otherwise have been charged for federal 

crimes for which they would serve terms of 3 years or less in federal prison.2

As the November 19, 2014, Department of Justice Office of Legal Counsel opinion 3 stated, ‘‘the Executive cannot, under the guise of exercising enforcement discretion, attempt to effectively rewrite the laws to match its policy preferences . . . An 

agency’s enforcement decisions should be consonant with, rather than contrary to, 

the congressional policy underlying the statutes the agency is charged with administering.’’ 

We are a Nation of laws, and a foundational aspect of our government is the separation of powers. This unilateral action on the part of the President not only sets 

a dangerous precedent, it threatens to unravel that very foundation our Nation was 

built upon. 

Mr. GOODLATTE. We thank our witnesses for joining us today, 

and if you would all please rise, we will begin by swearing you in. 

Do you and each of you swear that the testimony you are about 

to give shall be the truth, the whole truth, and nothing but the 

truth, so help you God? Thank you. 

Let the record reflect that all the witnesses responded in the affirmative. 
35 

Mr. Ronald D. Rotunda is the Doy & Dee Henley chair and distinguished professor of jurisprudence at Chapman University. Prior 

to joining Chapman, he was a professor of law at the George Mason 

University School of Law and the Albert E. Jenner Jr., professor 

of law at the University of Illinois. He is the coauthor of the sevenvolume ‘‘Treatise on Constitutional Law,’’ the author of ‘‘Modern 

Constitutional Law,’’ a leading course book on constitutional law, 

and he has coauthored the most widely used course book on legal 

ethics, ‘‘Problems and Materials on Professional Responsibility.’’ 

Mr. Rotunda received his BA and JD from Harvard University, 

where he was a member of the Harvard Law Review. 

Mr. Jay Sekulow is the chief counsel for the American Center for 

Law and Justice, which advocates for the protection of constitutional and religious freedom. A distinguished professor of law at 

Regent University, Mr. Sekulow has argued 12 cases before the Nation’s highest court, including McConnell v. FEC, where he ensured 

the constitutional rights of young people remain protected with a 

unanimous decision guaranteeing that minors can participate in 

political campaigns. Mr. Sekulow received his Ph.D. from Regent 

University with a dissertation on American legal history. He is an 

honors graduate from Mercer Law School, where he served on the 

Mercer Law Review, and an honors graduate of Mercer University. 

Mr. Thomas H. Dupree is a partner in the Washington, D.C., office of Gibson, Dunn & Crutcher, where he is a member of the 

firm’s litigation department and its appellate and constitutional 

law practice group. In 2013 and 2014, Chambers and Partners 

named Mr. Dupree one of the leading appellate lawyers in the 

United States. In 2014, Mr. Dupree argued and won by a unanimous vote a landmark personal jurisdiction case in the United 

States Supreme Court. Prior to joining Gibson, Dunn & Crutcher, 

Mr. Dupree served as deputy assistant attorney general in the 

Civil Division of the Department of Justice, ultimately becoming 

the principal deputy assistant attorney general. Mr. Dupree graduated cum laude from Williams College and with honors from the 

University of Chicago Law School, where he served as an editor of 

the University of Chicago Law Review. 

Marielena Hincapie ́ is executive director of the National Immigration Law Center. She is a public interest lawyer who specializes 

in protecting and advancing the rights of immigrant workers, particularly those who are undocumented. She has authored numerous 

publications and policy analyses, provided strategic assistance and 

training to thousands of legal and social service providers, labor 

unions, and community-based organizations. She holds a juris doctorate degree from Northeastern University School of Law, served 

on the American Bar Association’s Commission on Immigration, 

and is currently a member of the board of directors of Jobs With 

Justice and Welcome.US. 

I welcome all of you. I would ask that each witness summarize 

his testimony in 5 minutes or less. Your entire statement will be 

made a part of the record. To help you stay within that time limit, 

there is a timing light on your table. When the light switches from 

green to yellow, you will have 1 minute to conclude your testimony. 

When the light turns red, that is it, time is up, and it signals that 

you should finish your sentence and your statement. 
36 

So thank you all. We will now proceed first with Mr. Rotunda. 

TESTIMONY OF RONALD D. ROTUNDA, DOY AND DEE HENLEY 

CHAIR AND DISTINGUISHED PROFESSOR OF JURISPRUDENCE, CHAPMAN UNIVERSITY, DALE E. FOWLER SCHOOL 

OF LAW 

Mr. ROTUNDA. Thank you, Mr. Chairman and respective Members of the Committee. I think it’s important to explain that I favor 

increased immigration into the United States. If American Indians 

had strict immigration laws, perhaps none of us would be here. 

People want to come here for the same reason my parents wanted to come here, the land of opportunity and freedom. My parents 

did not know the language. They did not know the customs. They 

were strangers in a strange land. My mother told me years later 

the first night in the United States, though she was well past the 

age of toilet training, she had an accident. She was so excited to 

be here. My father fought in World War II as a spy for the Americans. He was a good spy because he spoke Italian like a native. 

When he was in his 90’s, I remember taking him to the VA doctor, and the doctor said, looking at the paper, ‘‘so you’re Italian.’’ 

My father said, ‘‘No, American.’’ You have to realize he did not 

know who was President. He did not know what year it was. He 

did not know my name, though he knew I was a friend. But he 

knew he was an American. 

So I favor reform along the lines of the President. Whether Congress exercises comprehensive immigration reform or goes one step 

at a time isn’t important. The government tells us there’s over 11 

million undocumented aliens here. We’re not going to march 11 

million people south of the border. Democracies just don’t have 

mass deportations. But we also, I think, should all agree, we have 

to secure our borders. If a 15-year-old can cross our borders, an Al 

Qaeda agent can as well. 

So the issue is not whether we agree with the President’s goals. 

In general I share them. The issue is whether it is constitutional 

for the President to act unilaterally to rewrite our immigration 

laws and change the status of, he says, about 5 million Americans, 

almost half of them are here without papers. The President’s executive power does not give him the power to govern by decree. It 

does not give him the power to suspend the law. If he can actually 

do this and get away with it, I guess future Presidents could say 

that they’re going suspend more parts of the Affordable Care Act. 

Maybe they’ll suspend it all. We don’t need a Congress to repeal 

it. We just need a President to say, ‘‘I suspend it.’’ 

The President said repeatedly over the last several years, I think 

over 20 times, he iterated and reiterated he does not have the 

power to do this, and then he did it. Why? He says in his statement 

to the people, Congress has failed. 

Congress doesn’t fail when it fails to enact a presidential proposal. If the Constitution were a computer program, we would not 

say that the separation of powers is a bug. It’s a feature of the program. The Framers wanted to make it difficult to enact laws, so 

we’re going to have to learn to compromise. The President won’t get 

all that he wants. Both sides of the aisle will have to compromise 

as well. There is going to have to be compromise. 
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Article II provides that the President shall take care that the 

laws be faithfully executed. This clause is not a general grant of 

powers. It’s actually a limitation on the power. The President must 

execute the law faithfully. A whole series of opinions of the Office 

of Legal Counsel—I’ll call them OLC opinions, and I refer to them 

in my paper have said this repeatedly, that the President cannot 

suspend the laws, that he has prosecutorial discretion for criminal 

acts, to refuse to prosecute criminally, but not civilly. Deportation, 

the court has told us, is civil and not criminal. 

The President tells us that this deal doesn’t apply to anyone who 

comes recently. He says, Congress has failed, and then asks ‘‘are 

we a Nation that accepts the cruelty of ripping children from their 

parents’ arms? Are we a Nation that values families?’’ Apparently 

we’ll accept this cruelty and rip children from their parents’ arms 

if they came here illegally before the arbitrary date of January 1, 

2010. No explanation about why that’s okay. Why couldn’t it be 

January 2nd or December 31? 

The new DHS policy reads an awful lot, it looks like a statute. 

I mean, it is six single-spaced pages, it talks about provisos, benefits, an arbitrary date. It grants, apparently from the newspapers, 

it says repeatedly that these people will now get Social Security 

cards. We don’t know how Social Security cards have anything to 

do with prosecutorial discretion. The OLC opinion spins a theory 

that relies on historical incidents, not legal precedents but historical incidents, and, secondly, reading a lot into a few selected segments of the statute. Case law is precedent. Historical examples 

are not. 

In any event, others have already distinguished those examples. 

They’re not about my theory. I’m not going to duplicate their efforts 

in any event. No other President has said he’s acted because Congress has failed and then issued an immigration order. No other 

President has said that he’s doing something that over the last several years he repeatedly said is unconstitutional. The President 

should at least explain, or the OLC opinion should explain why 

that was wrong. If somebody decided for years that 5 and 5 is 11 

and suddenly it comes out to be 10, we’d like to know why. Was 

it on the road to Damascus he got hit by lightning or what made 

him change his mind? 

The New York Times says, ‘‘Obama, Daring Congress, Acts to 

Overhaul Immigration,’’ and he does have an overall immigration 

reform. The OLC opinion admits that a general policy of nonenforcement would foreclose exercise of case-by-case discretion. 

Anyone who looks at this—— 

Mr. JOHNSON. Mr. Chairman. 

Mr. ROTUNDA [continuing]. It looks like a statute. 

Mr. JOHNSON. Regular order, Mr. Chairman. 

Mr. GOODLATTE. Mr. Rotunda, if you could summarize the remainder of your statement. It will all be part of the record. 

Mr. ROTUNDA. Yes. In my papers I cite about 10 OLC opinions, 

as well as Supreme Court opinions that say the President does not 

have the discretion to refuse to enforce civil law, and the OLC opinion ignored all of that, even ignored the statements and the important footnote in the Heckler opinion on which they relied. Thank 

you. 
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Mr. GOODLATTE. Thank you, Mr. Rotunda. 

[The testimony of Mr. Rotunda follows:] 
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Mr. GOODLATTE. Mr. Sekulow, welcome. 

TESTIMONY OF JAY ALAN SEKULOW, CHIEF COUNSEL, 

AMERICAN CENTER FOR LAW AND JUSTICE 

Mr. SEKULOW. Chairman Goodlatte, Ranking Member Conyers, 

distinguished Members of the Committee, on behalf of the American Center for Law and Justice and over 75,000 of our members, 

thank you for allowing me to appear before you today. 

Determining presidential authority is a task which must be engaged in with only one question: Do the President’s actions meet 

constitutional scrutiny? In this case, they do not. 

It is humbling for this grandson of a Russian immigrant to be 

before this Committee today. My father is in the audience. His father, my grandfather, came to the United States in 1914. In 1929, 

he applied for citizenship and filed a petition for naturalization. My 

daughter-in-law found this online. Two years later, a United States 

district court judge in Brooklyn, New York, granted Sam Sekulow 

his status. She found that order as well. 

I believe in immigration. I’m the grandson of that Russian immigrant. I get to argue cases before the Supreme Court of the United 

States and appear before this Committee. It’s a humbling thing. 

Immigration law was complex for my grandfather in 1931, and 

it is still complex today. The Constitution, however, is not. Our system of government is straightforward. Congress writes the law, the 

President executes the law, the judiciary interprets the law. This 

is the separation of powers mandated by our Constitution. The 

President does not make the law. 

Now, with due respect, some of the statements that have been 

made, the President has stated that he changed the law, and I 

don’t believe there’s anyone on this Committee that believes the 

President has the authority to change the law. He was being heckled at an event similar to what we experienced today. There are 

passions on either side of the issues. I understand that. I think we 

all understand that. I join Professor Rotunda, and I believe in significant and complete immigration reform. I believe in a pathway 

to citizenship. But I believe to do that through the legal process set 

forth in the Constitution, and the President doesn’t get to change 

the law. He actually said that, though, that he changed the law. 

That was how he handled the question that was asked. 

He changed the law. Presidents cannot change the law. He can’t 

do so constitutionally, he cannot do so under Supreme Court precedent, and he can’t change the law to comport with his preferred 

public policy, much of which I share. The President’s executive action really disrupts the delicate balance of separation of powers 

that is the hallmark of our constitutional framework. 

Justice Frankfurter stated that, regarding immigration and immigration issues, talking about being the exclusive power of Congress, that the formulation of these policies is entrusted exclusively 

to Congress. Now, 5 and 5 does not equal 15 no matter how many 

times you say it, and when 5 and 5 then equals 10, which is correct, that past constitutional wrong is not what made that correct. 

So this reliance that we have seen on some that President Reagan 

and President Bush and even President Eisenhower made or issued 

executive action or executive orders, which in some cases may be 
59 

clearly distinguishable because they didn’t set forth a new class, 

but even if they were not distinguishable, past constitutional acts 

do not get better with time. They are still just that, unconstitutional actions. 

President Obama also misplaces his reliance on the authority 

generally granted to the Secretary of Homeland Security. It’s very 

different to utilize your resources to determine the status of your 

prosecutorial mandates and how you’re going to use your limited 

resources. The condition of entry, though, of classes of aliens and 

having that denied or granted, and creating a class, a new class, 

is not what the President has the authority to do. As sympathetic 

as it might be to the plight of people involved, he simply doesn’t 

have that constitutional authority. 

And I think that with all the emotion we have even seen today, 

you have to put that aside. The question is, it comes back to the 

same question, does the President have the authority? And by the 

way, if you look at the OLC memo and compare it to what the 

President said the deal was, quoting the President’s word of what 

the deal is, I’d ask my colleague from the Immigration Law Center 

if she would recommend her clients accept the deal, because the 

deal the President talked about did not talk about unfettered discretion with the agency that could be terminated at any time with 

case-by-case determination. 

That’s not the deal the President talked about. That’s not the 

deal the President put in place. And I would not recommend my 

client to accept the deal that the President’s actually offered, which 

is very different than the deal outlined in the OLC memorandum. 

I would ask that to my colleague because standardless, absolute 

discretionary review by government agencies has been something 

I’ve been dealing with for 30 years at the Supreme Court of the 

United States, and it generally does not go very well for the agency. OLC said it was required, though, for the President’s actions to 

be deemed constitutional. I, as I said, I would not recommend my 

client to take the deal. 

In conclusion, in our view President Obama’s actions are unconstitutional, President Obama’s actions are unlawful, President 

Obama’s actions violate the separation of powers. And in conclusion, even with sympathy to the cause of immigration reform, inpatient Presidents may not violate the Constitution if they don’t get 

their way. 

Thank you, Mr. Chairman. 

Mr. GOODLATTE. Thank you, Mr. Sekulow. 

[The testimony of Mr. Sekulow follows:] 
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Mr. GOODLATTE. Mr. Dupree, welcome. 

TESTIMONY OF THOMAS H. DUPREE, JR., PARTNER, 

GIBSON, DUNN & CRUTCHER LLP 

Mr. DUPREE. Thank you, Mr. Chairman. Good afternoon. Thank 

you for inviting me to testify and to share my thoughts on the constitutionality of the President’s directive granting deferred action 

eligibility to approximately 5 million people who are currently here 

in the United States in violation of our immigration laws. 

I served as principal deputy assistant attorney general under 

President Bush. In that role, I litigated many immigration cases 

and advised the White House on immigration policy and reform. In 

my view, President Obama’s actions exceed his authority under the 

Constitution. The President was correct on the many occasions 

where he stated that he did not have the power to do what he has 

now done. 

While reasonable people can disagree over how best to fix our immigration system, and while there can and should be a robust public debate about how to address the status of the approximately 11 

million people who are here in this country illegally, there should 

be no doubt that by unilaterally acting through executive action 

rather than through the Congress, the President has circumvented 

the process our Founders envisioned. 

The Framers of our Constitution were well aware of the dangers 

of executive overreach. That is why they wrote a Constitution providing for the separation of powers and why the first sentence of 

Article I, Section 1 of our Constitution states, ‘‘All legislative powers herein granted shall be vested in the Congress of the United 

States.’’ 

The Framers also spoke to the President’s duty to enforce the 

laws enacted by this Congress. Article II, Section 3 provides that 

the President ‘‘shall take care that the laws be faithfully executed.’’ 

In my view, President Obama’s actions on immigration violate 

these constitutional provisions. His actions violate Article I, Section 

1, and the separation of powers by rewriting the laws of the United 

States not through legislative amendment but through executive 

fiat. They also violate Article II, Section 3 because they amount to 

an abdication of the executive’s duty to faithfully execute the laws 

of the United States. 

Let me say a word about the Take Care Clause. As its text 

makes clear, the President’s duty is not optional. The Constitution 

says that he shall take care that the laws be faithfully executed. 

And the Constitution’s use of the word ‘‘faithfully’’ underscores that 

the President is to execute laws in a way that maintains fidelity 

to congressional design. It is hard to see how an order directing 

that Federal law not be enforced as to approximately 5 million people amounts to faithful execution. 

The Take Care Clause does not give a President discretion to 

choose which laws he will enforce and which he will not. As the 

head of the Office of Legal Counsel under President Clinton wrote, 

‘‘The Supreme Court and the Attorneys General have long interpreted the Take Care Clause as standing for the proposition that 

the President has no inherent constitutional authority to suspend 

the enforcement of the laws, particularly of statutes.’’ 
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The consequences of this issue are not confined to immigration. 

If the President may use executive authority to simply ignore laws 

that he does not like, then it will be possible for future Presidents 

to unilaterally revise everything from Federal criminal law to tax 

law to environmental law and beyond. 

Of course, President Obama’s directive goes beyond mere nonenforcement of the law. It has the effect of affirmatively granting 

benefits, including the right to apply for work permits to those falling within its ambit. The Administration has invoked prosecutorial 

discretion in an attempt to justify the President’s actions. Prosecutorial discretion is well established in our Nation’s legal traditions. 

In fact, the concept predates the founding and finds its roots in the 

common law of England. Nowadays no one can dispute that prosecutors, or in this context executive branch officials with the constitutional duty to enforce immigration laws, may exercise discretion in setting enforcement priorities and in deciding what charges 

to bring or whether to bring charges at all. 

But there are limits on prosecutorial discretion. Generally speaking, it applies to individual cases, situations in which, in the judgment of the prosecutor, it would be unjust or otherwise inadvisable 

to apply the full force of the law based on the circumstances of an 

individual case. When I served in the Justice Department, I can recall many instances where we or the Department of Homeland Security made a determination to exercise discretion in individual 

cases. 

Prosecutorial discretion, however, is not so elastic a concept that 

it can stretch to encompass what the President has done here, 

granting blanket relief to a potential class of 5 million people. That 

is what makes President Obama’s actions different from prior instances in which Presidents have granted immigration relief. The 

scale of the President Obama’s directive significantly exceeds what 

past Presidents have done. Moreover, in prior instances, the executive was acting to implement a new statute consistent with the will 

of Congress. Here, in contrast, the executive is taking action precisely because Congress has refused to act in the way the President 

wants. Indeed, the President is attempting to write into law what 

Congress deliberately chose not to write into law. 

Finally, as many on this Committee will recall, during the Bush 

administration we were strong advocates of immigration reform, 

and we sought to get a bill through Congress. When we were unsuccessful, many of us were disappointed and frustrated, but we 

did not attempt to achieve through executive fiat what we could 

not achieve through the legislative process. We respected the system the Framers established. 

I thank the Committee for convening this hearing and look forward to your questions. 

Mr. GOODLATTE. Thank you, Mr. Dupree. 

[The testimony of Mr. Dupree follows:] 
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Mr. GOODLATTE. Ms. Hincapie ́, we are pleased to have you with 

us as well. 

TESTIMONY OF MARIELENA HINCAPIE ́ , EXECUTIVE 

DIRECTOR, NATIONAL IMMIGRATION LAW CENTER 

Ms. HINCAPIE ́. Thank you Chairman Goodlatte, Ranking Member 

Conyers, and Members of the Committee. Thank you for the opportunity to appear before you today. 

My name is Marielena Hincapie ́. I’m the executive director of the 

National Immigration Law Center, an organization that is dedicated specifically to helping families, low-income immigrant families like mine to contribute their best to our country and achieve 

the American dream. 

I’m an immigrant from Colombia. I arrived as a child to Central 

Falls, Rhode Island when my father was recruited to work at a textile factory there. My parents, like the parents of those who might 

be eligible for deferred action under the President’s executive authority, came here in pursuit of the American dream for their children. 

Last month, President Obama announced policy changes that 

bring much needed humanity and transparency to our immigration 

system. The President’s actions are well within the scope of his authority. He is relying on the Doctrine of Prosecutorial Discretion 

which you have heard about which provides the Department of 

Homeland Security, as well as every law enforcement agency in 

this country, the authority to set enforcement priorities, to target 

resources, and to shape how the law will be implemented. The Doctrine of Prosecutorial Discretion is well-established with solid constitutional, legal, and historical grounds. 

First, it is well settled in the courts that the executive officials 

have wide latitude in exercising this prosecutorial discretion. In the 

seminal case of Heckler v. Chaney the Supreme Court held that the 

agency’s decision to enforce or prosecute in either a civil or criminal 

matter is a matter of the ‘‘agency’s absolute discretion.’’ This includes the agency’s decision to prosecute or not to prosecute. 

In 2002, in enacting the Homeland Security Act, Congress expressly charged the executive branch with, ‘‘Establishing national 

immigration enforcement policies and priorities.’’ 

Secondly, exercising prosecutorial discretion to deprioritize the 

deportations for certain individuals is consistent with the Take 

Care Clause in Article II, Section 3 of the Constitution. Again, the 

Supreme Court held very clearly in Heckler v. Chaney, that because 

the executive branch is rarely provided enough funding to enforce 

every provision of every law against every single person in our 

country, the executive branch must develop enforcement priorities. 

The Heckler court specifically says, ‘‘Fateful execution of the law 

does not necessarily entail acting against each technical violation 

of the statute.’’ 

Finally, in addition to the legal authority, there is ample historic 

precedent to the Obama administration’s actions. Again, every Administration, Republican and Democrat since President Eisenhower, have exercised prosecutorial discretion to protect immigrants from deportation. 
80 

President Obama’s executive actions are also good policy. Not 

only will the President’s actions bring order and transparency to 

DHS’ enforcement priorities, it will also add billions of dollars to 

our coffers. Removing the threat of retaliatory deportation for 

workers will also improve working conditions for American workers. Moving workers from the informal economy, to the formal 

economy will improve America’s economy. And by creating a process by which individuals can come forward, apply, register with the 

Government, the Government will be able to refocus its enforcement priorities instead of separating families. 

Most importantly, this is not about politics or abstract numbers. 

This is about our families. This is about our communities. It is 

about our country. One cannot underestimate the significant impact that this policy change will have on those who might benefit. 

The mothers, fathers, young immigrants who are here, who are 

working, who are studying, will be able to contribute even more 

fully to our society. Reasonable minds might disagree on the politics or whether this is even real good policy. But what is undeniable is that the status quo is wholly unacceptable. 

Lupita, a brave 13-year old who is in the audience today, understands the psychological trauma the threat of deportation can 

cause. I met her over 6 years ago when her father was detained 

in a large Los Angeles-area raid. During the years that followed, 

Lupita suffered and struggled. Most Americans understand that 

U.S. citizens like Lupita need their parents to help them grow. The 

President’s actions are good news for Lupita and her little sister 

Marisol, because her mother Isabel who is also here today should 

qualify under this new deferred action program. 

Every daughter needs their mother. And our Nation’s laws 

should support strong families rather than rip them apart. What 

is truly at stake here today is the fight for the soul of our Nation. 

Are we going to continue ripping away parents from their children? 

Are we going to deport young immigrants who want to contribute 

their best to helping make America great or are we going to use 

existing law to bring order, fairness, and equality to our immigration system so that immigrants with strong ties to our communities 

can fulfill their full human potential. 

Our country can, and must do better. The American people have 

long supported the principles behind these new immigration policies because they recognize that they are good for our Nation. I 

trust that in your hearts and minds, you and I share a desire to 

do what is best for our country and I look forward to working with 

you toward that end. 

Thank you again for the opportunity to testify today and I look 

forward to answering your questions. 

Mr. GOODLATTE. Thank you. 

[The testimony of Ms. Hincapie ́ follows:] 
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Mr. GOODLATTE. We will now begin the questioning, and I’m 

going to reserve my questions at this time. 

I recognize the gentleman from Wisconsin, Mr. Sensenbrenner 

for his questions. 

Mr. SENSENBRENNER. First of all, I think I should emphasize the 

point that this hearing is on whether the President’s action is constitutional. 

The policy questions are not within the scope of this hearing, and 

I think will end up being debated at a later point, probably ad nauseam. What I would like to do is ask a couple of questions. 

First of all, why do you think the President on 22 occasions said 

that he didn’t have the power to do what he did, and then did a 

180? Maybe Ms. Hincapie ́, you can start out with an answer to 

that. 

Ms. HINCAPIE ́. I would be happy to, Representative Sensenbrenner. 

So unfortunately, I think the President was talking politics. He 

made those comments, much to our dismay, because we believe for 

many years now that the President did and does in fact have the 

legal authority. The President on a number of those occasions was 

specifically talking about immigration reform. He has been so focused on getting immigration reform done with Congress that he 

continually told the immigrant rights community that he would not 

do—— 

Mr. SENSENBRENNER. Okay. Let me ask Mr. Sekulow what his 

opinion is on this subject. 

Mr. SEKULOW. I think the President was correct when he said he 

could not make the law or change the law. He was speaking correctly. I think when he made the statement that he has changed 

the law, he recognized also that he did something. He thought he 

changed the law. He doesn’t think, by the way, it was simply a policy decision. He stated, he changed the law. And I don’t, as I said 

in my testimony, Congressman, I don’t believe there is anybody on 

this Committee that believes the President has the authority to 

change the law. He knew he did not when he made the statement 

22 times. And then he changed the law. He doesn’t get to do that. 

Mr. SENSENBRENNER. Okay, now, his own DHS secretary Jeh 

Johnson has stated there comes a point when something amounts 

to a wholesale abandonment to enforce a dually enacted constitutional law that is beyond simple prosecutorial discretion. I think 

that at least three of our witnesses believe that the President has 

crossed that line? Could you be more specific, and let me start with 

Mr. Dupree, be brief, and then work that way. 

Mr. DUPREE. Well, thank you, Mr. Sensenbrenner. I think that 

Secretary Johnson was correct when he says that there is a line. 

I think in this case the President not only crossed the line, but that 

line is far, far, far in the distance. 

Mr. SENSENBRENNER. Well, that’s kind of like the line he drew 

on Syria, right? 

Mr. DUPREE. I think that is an apt analogy. 

Mr. SENSENBRENNER. Thank you. 

Mr. DUPREE. And I don’t know that the Constitution requires a 

certain number of people beyond which he could not grant deferred 

action to. I don’t think the Constitution speaks to that degree. 
95 

Mr. SENSENBRENNER. Okay. My time is limited. Mr. Sekulow. 

Mr. SEKULOW. I’m going to just quote very quickly from the opinion that has been quoted by Members of this Committee and some 

of the witnesses, and that is the Chaney opinion. This is the part 

that is conveniently ignored. ‘‘Presidential action violates the Constitution’’—this is the quote—‘‘if he expressly adopts a general policy which is in effect an abdication of his statutory duty.’’ And I 

think that’s exactly what’s happened here. The President changed 

the law. 

Mr. SENSENBRENNER. Mr. Rotunda, briefly. 

Mr. ROTUNDA. Two things. 

Mr. GOODLATTE. Turn on your microphone. 

Mr. ROTUNDA. I’m sorry. Heckler v. Chaney, it said the agency’s 

decision not to prosecute or enforce, whether civil or criminal process, is generally committed to an agency’s absolute discretion. The 

OLC does not quote the next sentence that says basically, the reason for this is because of lack of standing. The law of standing has 

changed dramatically. Massachusetts v. EPA is an example and so 

maybe now we will get a test of this. 

But the President, it is mind-boggling that the President’s supporters say that when he told us earlier that he didn’t have the 

power, he was just lying. That was politics. That was political campaign. My jaw is dropped. 

Mr. SENSENBRENNER. Okay. Good. 

Now, the final question I have, and somebody can step up and 

be first, is: Doesn’t a wholesale application or prosecutorial discretion to thousands, or millions, or maybe several millions of people, 

amount to a repeal of a duly enacted law, and does the President 

have the power to do that through prosecutorial discretion? 

Mr. SEKULOW. Mr. Congressman, the President could and certainly could pardon people. Prosecutors exercise discretion on a 

case-by-case basis every time. You do see a situation where someone’s alleged violations of SEC laws and there is a prosecutorial decision made to not move forward on that case. That’s called prosecutorial discretion. 

What you don’t see, is a decision being made, we are not going 

to enforce the SEC laws in the United States. That would be rewriting the laws, which a President or the executive can’t do. 

Mr. DUPREE. I agree with that and I would add to it that our 

Constitution does confer discretion on the executive to exercise discretion in individual cases. When do you what the President has 

done here, you cross the line from permissive action under the executive’s rights under Article II, entrenches on this Congress’ authority under Article I to say what the law is. It is a legislative act. 

Mr. SENSENBRENNER. Thank you, my time is up. 

Mr. GOODLATTE. The Chair recognizes the gentleman from Michigan, Mr. Conyers, for his questions. 

Mr. CONYERS. Thank you. 

Attorney Hincapie ́, you have talked about prosecutorial discretion and whether it can really encompass a program that allows 

people to come forward and affirmatively apply for protection. Do 

you consider this a form of prosecutorial discretion, ma’am? 

Ms. HINCAPIE ́. Yes, Congressman. Basically, prosecutorial discretion in the immigration context, there are over 20 different types 
96 

of discretion. And here what the Administration has done is simply 

identified what the levels of priorities are, and has determined that 

parents of U.S. citizen children, and lawful permanent residents 

should not be deported and they will be given an opportunity to 

come forward. There is individual adjudication. This is not a massive blanket, giving people work authorizations simply because 

they are a parent of a U.S. citizen. 

Individuals will have to come forward. They will have to pass a 

criminal background check. They will have to show that they meet 

all of the eligibility criteria. And only after an individual adjudicator determines that that person merits deferred action will they 

be able to, under existing regulations, nothing new, existing regulations apply for an employment authorization document. 

Mr. CONYERS. Of course. 

Now, let me talk about deferred action which has existed for decades. Dating back more than 40 years, INS exercised prosecutorial 

discretion to grant non-priority status based upon humanitarian 

consideration. But in this case the Administration says that it will 

also offer work authorization to people who receive deferred action, 

not amnesty, or anything else. Can you recall any legal authority 

for that, and is that a break in tradition? 

Ms. HINCAPIE ́. Absolutely not. Again, the President has not created any new laws. The deferred action, as you mentioned yourself, 

Congressman, has existed—deferred action has existed for decades 

on the books. And in fact, the regulations, the immigration regulations section—8 CFR Section 274a.12 specifically lists out who is 

eligible for work authorization. 

And subsection (c)(14) explicitly says that—I will just quote, ‘‘An 

alien who has been granted deferred action, an act of administrative convenience to the Government which gives some cases lower 

priority, if the alien establishes an economic necessity for employment; is eligible for work authorization.’’ 

So this is, again, this is existing regulations on the books for 

many years prior to the Obama administration. There is nothing 

new in what the President has done. 

Mr. CONYERS. Now, turning to Chief Counsel Sekulow, can you 

tell me what new statute Presidents George H.W. Bush, and Clinton were implementing when they granted deferred enforced departure and employment authorization to hundreds of thousands of 

Salvadoran, Haitians, Liberians, after Congress chose not to extend 

their temporary protected status? 

Mr. SEKULOW. Mr. Conyers, the Supreme Court is recognized 

when it comes to matters of foreign concern, national security, 

there are issues where they have allowed deferred action. However, 

I reiterate what I said at the hearing in my testimony. I don’t believe and I still believe, actually, that the actions of President 

Bush, and President Reagan, as President Obama’s are constitutionally suspect, and I don’t think the fact that you have got a 30- 

or 40-year history of action that is unconstitutional doesn’t get better with time. 

I think it is important to point out that this is not an enforcefree zone creation here. This is different than even those cases. 

Mr. CONYERS. I get your drift. Let me ask you about whether— 

this goes to you, Mr. Dupree, as well. Can you tell me what new 
97 

statute George H.W. Bush was implementing when he granted deferred enforcement departure and employment authorization to approximately 80,000 Chinese nationals at the Tiananmen Square 

massacre? 

Mr. DUPREE. Mr. Conyers, the first President Bush, I think, was 

doing two things in his grants of immigration relief. One is, he was 

following on certain actions taken by his predecessor, President 

Reagan in interpreting the Immigration and Reform Control Act of 

1986. And I think that both President Reagan and President Bush 

were faithfully implementing the will of Congress in issuing regulations pursuant to ICRA. 

With regard to particular grants, either of Chinese nationals, 

Tiananmen Square, as Mr. Sekulow said, that is well recognized 

authority that when you have a foreign crisis, often one that generates a large number of refugees, that the President in large part 

owing to his duties under the Constitution to engage in foreign affairs and oversee the Nation’s foreign relations, often will grant 

temporary protected status to persons from affected Nations. 

Mr. CONYERS. Well, the answer in both of these instances were 

none. But I appreciate your interpretation. 

My time is exhausted, and I thank the Chairman. 

Mr. GOODLATTE. The Chair thanks the gentleman and recognizes 

the gentleman from North Carolina, Mr. Coble, for 5 minutes. 

Mr. COBLE. Thank you, Mr. Chairman. 

Good to have you with us today. 

Mr. Rotunda, let me start with you. Some of the defenders of the 

President’s unilateral actions have asserted that his actions were 

merely an exercise of prosecutorial discretion. Are these assertions 

correct, or is there indeed a fundamental difference between prosecutorial discretion, and many of the President’s unilateral actions? 

Mr. ROTUNDA. The short answer, if I can be short, is prosecutorial discretion, the case is referred to criminal prosecutions. The 

refusal to not prosecute somebody who enters the United States 

fraudulently in violation of its criminal laws. 

The Office of Legal Counsel has said, the 1990 opinion, it says, 

the President’s powers do not permit the President to determine as 

a matter of policy discretion which statutes to enforce. Obviously, 

the President cannot refuse to enforce a statute he opposes for 

mere policy reasons. Now, you would think the present OLC opinion would distinguish that. They don’t even cite it. And there is a 

whole series of other ones where they don’t cite it. In Galvan v. 

Press, the Supreme Court said Congress is the authority in immigration matters, not the President. The President implements the 

law. You would think that the OLC opinion would try to distinguish that. They ignore it. 

Mr. COBLE. I thank you, Mr. Rotunda. 

Mr. Sekulow, let me bring one of the President Bushes into the 

hearing room here. President H.W. Bush proposed that Congress 

should lower the tax on capital gains, you may recall. Congress did 

not enact his proposal. Under President Obama’s assertion of executive power, could President Bush simply have ignored or instructed the IRS not to enforce the tax code on capital gains greater than 10 percent? 
98 

Mr. SEKULOW. If President Bush would have done that, he would 

have been exercising an unconstitutional policy that he would be 

implementing. It would not be legal and it would be unlawful. Having said that, I think it’s a great analogy to what’s happened here. 

I keep going back to this, but the truth of the matter is, the President, you can play the 22 times the President said, I’m not a king 

and I have to work with Congress. But the President of the United 

States, and I want to read this because this addresses this, made 

this exact statement. 

Mr. COBLE. If you will, be terse. I have got one more question 

for you. Go ahead. 

Mr. SEKULOW. Okay, very quickly. The President said, I just took 

an action to change the law. And as I keep saying, no one on this 

Committee can possibly believe that the President has that authority. He just doesn’t. You couldn’t do it for taxes. You can’t do it for 

immigration. 

Mr. COBLE. I thank you, sir. 

Mr. Dupree, and Madam, let me put this question jointly to you 

all. I am advised that there may be approximately 5 million who 

are waiting in line, complied with the law, who may fall victims of 

double standards. Is my concern justified? 

Mr. DUPREE. I think it is. I fear, and I feel badly for people who 

have been waiting in line, waiting their turn, and now, unfortunately, may be penalized and that they are moved farther back in 

the line, precisely because they had the bad judgment to respect 

our laws and play by the rules. 

Mr. COBLE. Is 5 million an accurate count? 

Mr. DUPREE. That sounds right to me. I don’t profess to have personal knowledge of that, but that sounds right. 

Mr. COBLE. Madam, do you want to be heard on that question? 

Ms. HINCAPIE ́. Sure. I completely agree that there is a need to 

address the backlog, the visa backlog, and frankly, this is where 

Congress needs to act and pass immigration reform so that families 

can be reunited. 

However, we do have 11 million people in this country, and what 

the President has done has said individuals who are parents of 

U.S. citizens, lawful residents, are low level priority. However, he 

will continue enforcing the law based on the appropriations you 

have provided. So there is no abdication of his authority. Let’s remember, only about 4 or 5 million people are estimated to benefit 

from this deferred action program and other changes. There are another 6 million plus individuals who will be subject to deportation 

and detention under the appropriations that the Congress has allocated. 

Mr. COBLE. I thank you. 

Mr. Sekulow. 

Mr. SEKULOW. Yes, sir? 

Mr. COBLE. I cut you off earlier. We have a few moments. Maybe 

you want to reclaim your time. 

Mr. SEKULOW. Yes, sir, if I may. I am just going to—it is in response to my colleague. Here is the problem: Under the President’s 

plan, what lawyer would recommend to their client who was an unlawful immigrant in the United States that even fit under this 

plan, what lawyer would recommend that their client register for 
99 

this knowing that to be constitutional, OLC said, you have to have 

absolute discretion and that the President on his own can cut this 

program off at a moment’s notice. 

So now you have disclosed yourself publicly. You may have come 

out of the shadows, but the light at that point will be so bright you 

could end up in a situation worse than you were in to begin with. 

Mr. COBLE. Thank you. 

The red light is about to illuminate. Thank you all again. 

Mr. GOODLATTE. Would the gentleman yield? Would the gentleman from North Carolina yield to the Chair? 

Mr. COBLE. I will be pleased to. 

Mr. GOODLATTE. I thank the gentleman and without objection, 

the gentleman is recognized for an additional 30 seconds. 

I just want to make one important point here. The gentlewoman, 

Ms. Hincapie ́, stated that the other 6 million would be subject to 

deportation. But the President, the same time he signed the Executive Order that made it clear that those 5 million would be entitled 

to a legal, administrative legal status, also changed other rules 

that made it clear that the vast majority of the remaining 6 million 

who are already here will not be subject to action to deport them 

because—— 

Ms. LOFGREN. Would the gentleman yield? 

Mr. GOODLATTE. I will recognize the gentleman for an additional 

30 seconds so he can yield to the gentlewoman from California. 

Mr. COBLE. I have the time and I will yield. 

Ms. LOFGREN. I will just note that it is indeed correct that the 

other 6 million have fallen into the new categories. 

However, we have 11 million undocumented individuals. Congress only appropriates sufficient funds to remove 400,000 a year. 

Surely, the Chairman is not suggesting that there should be no policy on who should come first of the 400,000 of the 11 million. 

And I yield back. 

Mr. COBLE. Well, reclaiming my time, I don’t want to penalize 

those who have complied with the law. That’s the direction from 

which I was coming. 

I reclaim and yield back. 

Mr. GOODLATTE. The Chairman recognizes the gentleman from 

New York, Mr. Nadler for 5 minutes. 

Mr. NADLER. Thank you. 

Thank you, Mr. Chairman. I am glad that this is not a hearing 

on the policy because if it were a hearing on the policy, I would 

point out that in the last Congress, this Committee reported four 

bills—I’m sorry, voted for four immigration bills, none of which had 

report language or went to the floor. So that’s how active this Committee has been, or the House has been in trying to deal with the 

policy problem which everybody agrees with. 

But let me ask a few very specific legal questions about the 

President’s power. 

First of all, Professor Rotunda, you quoted Heckler v. Chaney. In 

Heckler v. Chaney the Supreme Court explained that ‘‘An agency’s 

decision not to prosecute or enforce, whether it is a civil or criminal 

process is a decision generally committed to an agency’s absolute 

discretion.’’ 
100 

In your written remarks you distinguished Chaney by saying it 

really focused on standing and by saying the law on standing has 

evolved significantly since that decision. But do you know how 

many times the court in Chaney mentioned standing in its opinion? 

Zero. The decision actually had nothing to do with standing. The 

case involved a lawsuit against the FDA brought by prisoners who 

were due to be executed by lethal injection. They sued to force the 

FDA to ban the use of these particular drugs for executions after 

the FDA denied their petition for enforcement. It is hard to imagine that even the most conservative judge would find standing lacking in that situation. 

So given the fact I don’t see how you find standing there. And 

the case does stand for the proposition that the agency’s decision 

to prosecute or enforce is at its discretion. 

Mr. ROTUNDA. Yeah, please look at 470 U.S.—— 

Mr. NADLER. I can’t hear you, sir. 

Mr. ROTUNDA. I’m sorry. Please look at 470 U.S. page 831, the 

text at note 4—as well as note 4. In note 4, the court says: ‘‘We 

don’t have a situation where it could justifiably be found that the 

agency has ’consciously and expressly adopted a general policy’ that 

is so extreme as to to amount to an abdication of the statutory responsibilities.’’ It then cites with approval Adams v. Richardson, a 

DC case in 1973, which found standing and ordered the agency to 

act. 

Now, I would have thought the OLC, since it relied on this case, 

I think 20 times, would have pointed out why somehow that footnote was irrelevant to them. 

Secondly, you are absolutely right. It does not use the word 

standing, but it talks about the course—what it says in the paragraph before the text at footnote 4, is that generally the agency exercises coercive power over an individual. That’s how the courts get 

standing. 

Mr. NADLER. But generally, the agency may exercise coercive 

power over an individual at its discretion. It doesn’t have to exercise discretion. That’s what an agency has to do. 

Mr. ROTUNDA. I’m sorry, the court says at text and footnote 4, 

that we emphasize, the decision is only presumptively unreviewable; but presumption may be rebutted where the substantive statutes provided guidelines for the agency to follow in exercising its enforcement power. 

Mr. NADLER. Okay, so the court is saying that the agency has 

discretion, and in its enforcement power, and the statute gives it 

guidelines in how to exercise that discretion. 

Mr. ROTUNDA. It says that it is presumptively unreviewable, but 

when it is exercising power in a way that has standing, it can be 

reviewed. I mean, that is basically what Adams v. Richardson said, 

if I can just finish the sentence, and if you fast forward to Massachusetts v. EPA, where the State of Massachusetts, forced the EPA 

to institute regulations with carbon dioxide pollution and global 

warming. Excuse me, and the Supreme Court said—— 

Mr. NADLER. Excuse me, you are wrong on that too. The holding 

of the court says very clearly, ‘‘We hold only that EPA must ground 

its reasons for action or inaction in the statute.’’ That is, if the EPA 

wishes to deny a petition of rulemaking, it needs to do so in a mat-
101 

ter that is ‘‘not arbitrary and capricious or otherwise not in accordance with the law.’’ But it is its decision.’’ All that is saying is, it 

can’t be arbitrary and capricious, which is the normal standard. 

Mr. ROTUNDA. If the court said that, they wouldn’t say it was 

presumptively unreviewable. They would say it would always be 

unreviewable. And the court reviewed—the court reviewed the EPA 

in Massachusetts v. EPA. 

Mr. NADLER. The court said that the EPA had that discretion. 

Let me ask you a different question, though. The statute very 

clearly says that certain individuals shall upon the order of the Attorney General be removed. That would seem, the key words ‘‘upon 

the order of the Attorney General’’ would same to indicate that the 

executive branch official has discretion to decide whether those undocumented immigrants be deported or not. 

Mr. ROTUNDA. You are dealing with a complex statute, and you 

are taking out a phrase. 

Mr. NADLER. You are dealing with a lot of complicated court decisions and taking out phrases. 

Mr. ROTUNDA. I’m sorry, what? 

Mr. NADLER. You are dealing with a lot of complicated court decisions and taking out phrases. 

Mr. ROTUNDA. I found pretty much due to it holding, and when 

I quote from the OLC, from their prior cases where the OLC says 

the President doesn’t have the discretion to refuse to enforce laws 

he disagrees with as a matter of policy, maybe there is a way to 

distinguish that. But a good legal opinion would have done 

that—— 

Mr. NADLER. Let me read you from the case of Arizona v. U.S., 

which is probably the most recent—probably the most relevant 

case. In Arizona the Supreme Court relied upon the broad discretion exercised by Federal immigration officials and let me read 

from you the decision. ‘‘Congress has specified which aliens may be 

removed from the United States and the procedures for doing so.’’ 

May be. ‘‘Aliens may be removed if they were inadmissible at the 

time of entry, had been convicted of certain crimes, and meet other 

criteria set by Federal law. Removal is a civil, not a criminal matter. A principal feature of the removal system is the broad discretion exercised by immigration officials. Federal officials, as an initial matter, must decide whether it makes sense to pursue removal 

at all.’’ QED, end of discussion. 

Mr. ROTUNDA. I wonder why the President for 6 years—— 

Mr. NADLER. Excuse me, I asked you about the Supreme Court 

ruling. The President may have been mistaken, and he may not 

have studied the issue. That is not the point. The point is, the Supreme Court has told us that Federal officials as an initial matter 

must decide whether it makes sense to pursue removal at all. A 

principal feature of the removal system is the broad discretion exercised by immigration officials. That would seem right there to 

justify almost any discretionary program that isn’t arbitrary and 

capricious. 

Mr. ROTUNDA. Now, I—— 

Mr. GOODLATTE. The time of the gentleman has expired. The 

gentleman may briefly answer the question. 
102 

Mr. ROTUNDA. Yeah. I would have thought the OLC would have 

at some point, rather than sitting on its haunches and vegetate, 

tell the President, for the last 6 years, you have been wrong. 

Mr. NADLER. But you didn’t answer what the Supreme Court just 

said here. 

Mr. ROTUNDA. I wish I could—— 

Mr. NADLER. I wish you could too. 

Mr. GOODLATTE. The Chair recognizes himself for his questions, 

and will give the gentleman Mr. Rotunda an additional few seconds, to respond again to that. 

Mr. ROTUNDA. Galvan v. Press, page 531 of volume 347, the court 

said: ‘‘In the enforcement of these immigration policy’’ and I’m 

quoting now, ‘‘the executive branch of the Government must respect the procedural safeguards of due process, but the formulation 

of these policies is entrusted exclusively to Congress.’’ That has become about as truly embedded in the legislative and judicial issues 

of our body politic as any aspect of our Government. Now, maybe 

you can distinguish that, too, but I thought—— 

Mr. GOODLATTE. Let met buttress your argument here. 

In Arizona v. U.S., the Supreme Court said: ‘‘Discretion in the 

enforcement of immigration law embraces immediate human concerns. Unauthorized workers trying to support their families, for 

example, likely pose less danger than alien smugglers or aliens 

who commit a serious crime.’’ But it goes on to say, ‘‘the equities 

of an individual case may turn on many factors, including whether 

the alien has children born in the United States, long ties to community,’’ et cetera, et cetera. 

So the issue really here is, what is the meaning of prosecutorial 

discretion? Has the President abused that discretion when he applies it in a blanket way to 5 million people or does it—— 

Mr. NADLER. Mr. Chairman. 

Mr. GOODLATTE. For what purpose does the gentleman seek recognition? 

Mr. NADLER. To make a 30-second comment on what you just 

said. 

Mr. GOODLATTE. I am not going to yield to you. I’m going to ask 

my questions of the gentleman. 

Mr. ROTUNDA. The President has dispensed the law, suspended 

the law until he says otherwise. That is not what you normally 

think of as prosecutorial discretion, which typically involve suspensions of the criminal law, not the immigration laws, at least the 

civil aspects of immigration. 

Mr. GOODLATTE. And President Obama cites an opinion of the 

Justice Department’s Office of Legal Counsel to justify his executive legalization of millions of unlawful aliens. Isn’t it true that the 

Office of Legal Counsel doesn’t have a particularly great track 

record when it comes to questions of executive power? 

For example, in 2012 the Obama administration touted an OLC 

opinion justifying the President’s controversial recess appointments. Didn’t the Supreme Court subsequently rule that those appointments were unconstitutional, in a unanimous nine to nothing 

ruling? 

Mr. ROTUNDA. He lost nine to zero. 
103 

Mr. GOODLATTE. The Justice Department Office of Legal Counsel 

states that the salient feature of class-based deferred action program, the establish of an affirmative application process with 

threshold eligibility criteria does not in and of itself cross the line 

between executing the law and rewriting it. This is because each 

program has also left room for case-by-case determinations giving 

immigration officials discretion to deny applications even if the applicant fulfills all of the program criteria. This feature of the proposed program ensures that it does not create a categorical entitlement to deferred action that could raise concerns that DHS is either impermissibly attempting to rewrite or categorically declining 

to enforce the law with respect to a particular group of undocumented aliens. 

However, in President Obama’s deferred action for childhood arrivals, DACA program, executive legalization for illegal immigrants 

who came to the U.S. as minors, the promise of discretion for adjudicators is mere pretense. In reality, DHS has admitted to the Judiciary Committee that if an alien applies and meets the DACA eligibility criteria, they will receive deferred action. 

In reality, immigration officials do not have discretion to deny 

DACA applications if applicants fulfill the criteria. Thus, by the Office of Legal Counsel’s own admission, the President’s DACA program is constitutionally suspect. The rules—— 

Mr. CONYERS. Mr. Chairman, parliamentary inquiry. Are you 

using your own time? 

Mr. GOODLATTE. I’m using my own time. 

Mr. CONYERS. Well, I’m glad that you announced that. 

Thank you very much. 

Mr. GOODLATTE. The rules of the game will most assuredly be 

the same for President Obama’s latest executive legalization. Thus, 

isn’t it true that the OLC would also clearly find the President’s 

latest gambit constitutionally suspect? Mr. Sekulow. 

Mr. SEKULOW. Well, I think here is the situation. When you read 

the OLC memorandum and the justification for the case-by-case individual analysis, it goes on to state—now, I wish some of the people that were protesting would stay for the rest of this and see if 

they really like this deal so well, the deal the President put forward, because as he said, ‘‘As we previously noted, deferred action 

confers no lawful immigration status, provides no path to lawful 

permanent residency or citizenship, and is revocable at any time in 

the agency’s discretion.’’ 

Now, that is markedly different than what the President told the 

4 million people to come out of the shadows, from what he actually 

told them, to what OLC said he can do. And when you look at the 

OLC memo, on the individual case-by-case determination and you 

look at it in the context of reality, there is no way that it can be 

handled on a case-by-case basis. So it is either a blanket exemption 

across the board, or it is not. 

Mr. GOODLATTE. Thank you. 

Mr. Dupree, did you want to add to that? 

Mr. DUPREE. I agree with that. I think the language in there referring to the purported case-by-case analysis is simply window 

dressing and tend to confer a patina of constitutional legitimacy on 

this policy, which is plainly unconstitutional. 
104 

Mr. GOODLATTE. It’s a blanket governance. 

The Chair recognizes the gentleman from Virginia, Mr. Scott, for 

his questions. 

Mr. SCOTT. Thank you, Mr. Chairman. 

Mr. Chairman, we could put an end to this debate by passing 

some kind of comprehensive immigration reform. Apparently, many 

on both sides of the aisle agree it’s a policy, and so instead of arguing process, let’s get on with comprehensive immigration reform. 

But in the meanwhile, it has been acknowledged that about 11 million people are potentially subject now to deportation. Congress has 

spoken, and has not appropriated anywhere close to enough money 

to deport everyone, as my colleague from California has said. And 

so Ms. Hincapie ́, we have to establish some policy as to priority. 

What is wrong with the policies articulated by the President? 

Ms. HINCAPIE ́. So, there is nothing wrong with the policies announced by the President. In fact, they are based on Congress’ will 

over the years to say that we should respect family unity and that 

the fact that the Administration has decided to focus on the parents of U.S. citizens, and lawful permanent residents is good policy 

and the Administration gets to decide. They have that executive 

discretion to decide who is a low-level priority so that they then 

can use and follow the law, the appropriations that have been provided by Congress, to focus on serious criminals and individuals 

who pose national security threats, et cetera. 

Mr. SCOTT. Thank you. 

Professor Sekulow, if the Administration said and states where 

the States have eliminated prohibitions against marijuana that 

they are not going to prosecute any low-level marijuana cases, 

would that be constitutional? 

Mr. SEKULOW. Well, I think the Supremacy Clause, if there is a 

Federal law on marijuana use, the State can override it. 

Mr. SCOTT. That is right, absolutely right. If the President says 

notwithstanding that reality, they are not going to prosecute cases 

would that be constitutional? 

Mr. SEKULOW. On a case-by-case basis utilizing prosecutorial discretion, he could do that. What he could not do though, Congressman Scott, would be to say we are no longer going to enforce the 

drug laws in the United States, or even particularly the marijuana 

laws in the United States. That individual case-by-case determination is critical, but it is in this memo because it was the only way 

to justify the President’s actions. 

Mr. SCOTT. So it would not be constitutional to not prosecute in 

those States? 

Mr. SEKULOW. If the President were to determine as a matter of 

executive action—— 

Mr. SCOTT. Right. 

Mr. SEKULOW [continuing]. That he was not going to enforce the 

laws against utilization of marijuana as a criminal act, I believe 

that that would not be within his authority. 

Mr. SCOTT. In those States. 

Mr. SEKULOW. In those States. Saying on an individual basis he 

wants to exercise discretion, he can do that on an individual basis. 

Mr. SCOTT. And if you disagree with that, then that’s pretty 

much where we are on this debate? 
105 

Mr. SEKULOW. Pretty much. 

Mr. SCOTT. Okay. Now the Family Fairness Program, I understand that President Bush covered about 42 percent of the undocumented population; the Obama administration, this Executive 

Order covers about 35 percent. 

Can you explain, Mr. Sekulow, how Presidents Reagan, Bush, 

Clinton and Bush, can you remind us how they can do something, 

but all of a sudden President Obama can’t do essentially the same 

thing? 

Mr. SEKULOW. As I said in the written testimony, Congressman 

Scott, and as I said in my opening statement, I don’t believe that 

President Bush, President Clinton, President Bush, and President 

Obama have the constitutional authority to do what they did. And 

the fact that it has been done for 4 Administrations and over 25 

or 30 years, as I said, constitutional violations don’t get better with 

time. 

I mean, some have argued that there is statutory determination 

distinctions that are at play here. I don’t take that position. I take 

the position that if you look at it just constitutionally, was there 

a constitutional basis upon which those actions were taken? And 

I’m frankly, I don’t see it, and I’m sympathetic to what they are 

doing. It’s just, I don’t see it to be done that way. And these percentages should make—constitutionality is not determined by the 

percentage of violations. If there is a violation of 1 percent, it is as 

bad as a violation of 99. 

Mr. SCOTT. Is there any constitutional legal distinction from a 

general deferment and a country-specific action? 

Mr. SEKULOW. Yes, because the President has inherent—and the 

Supreme Court has recognized this—has inherit ability to deal 

with matters of foreign affairs and national affairs of the country. 

Mr. SCOTT. And if there is a violation, who has standing to complain? 

Mr. SEKULOW. The great question. The standing question. I think 

some of the States are going to try to have standing in this particular case. Standing always are difficult in these kind of challenges. 

Mr. SCOTT. If the President had just done it without talking 

about it, what would be the result there? 

Mr. SEKULOW. He would have been found out. You can’t do it to 

4 million people. And I will be, again, brutally honest here, as 

someone who is in favor of comprehensive immigration reform, as 

a lawyer, I would not recommend my client take a deal where their 

status is revokable at any time at the agency’s discretion. So 

maybe he would have done it. I question how many people are 

going to actually take part in this. 

Mr. SCOTT. Thank you, Mr. Chairman. 

Mr. GOODLATTE. I thank the gentleman. 

The Chair recognizes the gentleman from Alabama, Mr. Bachus 

for 5 minutes. 

Mr. BACHUS. Thank you. 

I think maybe listening to everyone on the panel, I think, and 

most of the Members on the dais, we all agree that our country, 

its citizens, and even our immigrants need comprehensive immigration reform. 
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**The material referred to is not reprinted in this hearing record but is on file with the Committee and can be accessed at http://thomas.loc.gov/home/lawsmade.toc.html. 

And Mr. Dupree said, you have been frustrated for years over 

our inaction. So let’s agree on that just for purposes of argument. 

Does that make what the President did constitutional if it is unconstitutional? 

Mr. SEKULOW. Well, in my view, Congressman, no, it would not. 

And I think, to Congressman Scott’s point, I think it actually has 

hurt the debate because as you see here and you hear, there is a 

lot of agreement of the need for, you know, a constitutional path, 

a legal path of immigration reform. 

And look, when I hold my grandfather’s naturalization papers 

up, it means a lot to me. Me when they call my name at the Supreme Court and say, Mr. Sekulow, we will now hear from you, 

and I am the grandson of that Russian immigrant, I get it. 

But the process has to be right. And I think, unfortunately, the 

President’s action which I still think is not only constitutionally 

suspect, but dangerous for the potential client, I don’t think that 

advances the debate because we are talking about, as Congressman 

Scott said, we are talking about this, instead of getting real comprehensive immigration reform through, which would include border security. 

Mr. BACHUS. Yeah, and I think I know Mr. Sensenbrenner said 

we are here to figure out why he did what he did. I don’t think 

that’s helpful at all. I mean, we would probably come up with 100 

different variations on why he did it. I don’t think that’s material. 

I think it’s whether it is constitutional or unconstitutional. 

And I think we go back to, you know, this little book here, How 

Our Laws Are Made.** I mean, you know, fifth grade, and I want 

to introduce this. 

Mr. GOODLATTE. Without objection it will be made a part of the 

record. 

Mr. BACHUS. And then we back that up with not only Section 1 

of Article I, but Section 8 which actually says to establish uniform 

rules and naturalization. And it didn’t give it to the President; 

clearly, and simply gave it to the Congress. Now, some of us may 

disagree with that. But it’s the Constitution. 

Mr. ROTUNDA. Mr. Bachus, a brief comment. Justice Jackson in 

Youngstown Sheet & Tube v. Sawyer said, ‘‘The President’s power 

is at its lowest when he is acting contrary to the express or implied 

will of Congress.’’ And the President has basically admitted the implied will of Congress, if not expressed, is not to act in this area 

at least not yet. So his power should be at the lowest. 

Justice Jackson—or Justice Frankfurter, rather, in that opinion 

also said that we are not dealing with a situation where there is 

a temporary emergency and the President is acting until he can 

persuade Congress to act. That ends on its own. Neither one of 

those statements was discussed in the OLC opinion. 

Mr. BACHUS. Thank you. 

And let me say this: You know, the question has been asked, and 

I think it’s answered in the question: Can the President create, 

amend, suspend, or ignore an act of Congress? I think the answer 

is right there, an act of Congress. 
107 

Mr. DUPREE. I would also point out—— 

Mr. BACHUS. And the answer is no. 

Mr. DUPREE. One of the many grievances articulated against 

British rule in the Declaration of Independence was the kings’ propensity to suspend or disregard the lawful enactments of parliament. And so it really goes back to the very foundations of our 

country. 

Mr. BACHUS. Right. 

Mr. DUPREE. In fact, I think it was Mr. Scott who referred to, 

let’s discuss policy rather than process, but the point is, process 

matters. It mattered to our Founders and it should matter to—— 

Mr. BACHUS. And let met tell you why it ought to matter to those 

who are in our country without legal status. Many of them came 

here because there was no rule of law in their country. And they 

came here because we have rule of law. 

And to come, or even for us to allow them to come and start with 

a violation of rule of law actually degrades not only our citizens, 

but those who are here, who we all owe the protection of our laws, 

whether you agree or disagree with this, are for everyone’s benefit. 

And they are, our liberty, liberty, liberty. That’s what they talked 

about when they wrote these things. And this is a loss of liberty. 

And it just doesn’t matter why the President did this, or his motivation, or whether we think it is reasonable. It is not. It violates 

the rule of law. 

Does anyone disagree with that? 

Ms. HINCAPIE ́. I respectfully disagree, Congressman Bachus, and 

the reason, again, is I think we are going back and forth between 

is the President following the Constitution, and—— 

Mr. BACHUS. Well, let me ask you this: 

Mr. GOODLATTE. The gentleman’s time is expired. He can state 

his question very quickly and you can respond very quickly. 

Mr. BACHUS. Does the President have the right to create an act 

of Congress, to amend an act of Congress, or to suspend an act of 

Congress, or to ignore an act of Congress? And you know, this is 

50 pages. 

Mr. GOODLATTE. That’s the question. 

Ms. HINCAPIE ́. Absolutely not. And that is not what the President 

is doing here. The President is continuing to follow the act of Congress by enforcing and using the appropriations for 400,000 deportations a year, and secondly, exercising—— 

Mr. BACHUS. So he has the power to legalize what is illegal? 

Ms. HINCAPIE ́. No, he is not providing any legal status to individuals. This is simply temporary reprieve from deportation. There is 

no legal status that is being conferred. 

Mr. GOODLATTE. The Committee is advised that we have three 

votes on the floor and we will stand in recess and we will reconvene immediately after those votes. 

It’s my understanding that Mr. Rotunda has some concerns with 

a flight that he doesn’t want to miss, and the Committee will certainly work with him to accommodate that. If you can stay as long 

as possible, great. But if you need to leave during this vote period 

which is going to last at least a half-hour, we understand. 

And the Committee will stand in recess. 
108 

Mr. MARINO [pesiding].I am going to call this hearing back to 

order. Thank you for waiting. I apologize. I don’t think we will 

have anymore interruptions. And the Chair now recognizes the 

Congresswoman from California, Ms. Lofgren. 

Ms. LOFGREN. Well, thank you very much, Mr. Chairman, and I 

am glad that the—obviously the last votes of the hour have resulted in a much smaller panel back from the votes, so we will not 

be here that much longer. I do want to make a couple of comments. 

First, since all of this is submitted to the record under oath, I 

want to make a correction I am sure was inadvertent. Mr. Sekulow, 

in your written testimony, on page 5, footnote 22, you assert that 

there was a provision that allowed for—in the statute—that allowed for humanitarian relief for family members. When I read 

that, I thought, Did I get this wrong? And so I went and reread 

IRCA, and I just want to correct the record because it is exactly 

incorrect. 

The statute—well, let me just read what the Committee said 

when they passed the vote. This is the Committee report for IRCA: 

It is the intent of the Committee that the families of legalized 

aliens will obtain no special petitioning right by virtue of the legislation. They will be required to wait in line as the same manner 

as immediate family members of other new resident aliens. 

The provision that you referenced in the footnote relates to humanitarian waiver but only for those individuals, if you look at 8 

U.S. Code 1401, who are ineligible for other reasons, and so it specifically does not provide relief to individuals who were made intentionally ineligible for leave under the statute. I am sure that was 

inadvertent, but I would ask unanimous consent to put the public 

record into the record. 

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Ms. LOFGREN. I also wanted to question, I guess, an issue. In 

footnote 21 on your testimony, you mentioned the CRS report about 

granting relief. I think it is important—and I would ask unanimous 

consent to place into the record the Congressional Research Service 

report that is referenced, that that, according to the CRS, was the 

first time or at least the most notable time that the grant of blanket extended voluntary departure was made for domestic policy 

considerations rather than a crisis in a foreign national’s homeland. 

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Ms. LOFGREN. And I think that is an important issue because I 

think you, sir, and also Mr. Dupree have indicated that prior 

grants of relief were related to the President’s inherent foreign policy position, and that is clearly—hasn’t been the case for many decades. 

Finally—well, I guess it is not finally because I don’t want to be 

corrected by my colleague from California, but I am sorry that Mr. 

Rotunda has had to leave because I did want to comment on a couple of the points that he made. He mentioned that the—and I have 

lost my notes here. Now let me go to you, Mr. Dupree. 

You mentioned in your written testimony a former head of the 

Office of Legal Counsel under President Clinton, and we researched 

who was that person, and it turns out, unless there were two individuals who made the exact same comment, that it was Walter 

Dellinger. And it occurred to me that, although you are quoting 

him, Mr. Dellinger is 1 of the 10 legal scholars who has written to 

us saying that although they differ on the merits of immigration 

reform, they do not disagree on the power of the President and that 

they have reached the opinion that the President’s action most recently are completely lawful and consistent with governing law and 

with the policies that Congress has expressed in the statutes that 

it has enacted. 

In fact, when he was making the Take Care Clause comment, it 

was in reference to a request or an opinion regarding whether the 

Constitution limits the authority of the Federal Government to 

submit to binding arbitration. And the OLC opinion concluded that 

there was no such constitutional prohibition. As the Supreme Court 

in Heckler v. Chaney had indicated, the faithful execution law does 

not necessarily entail acting against each technical violation of the 

statute, but the case cited really has nothing to do, in my judgment, with the points that you are making relative to the immigration matter. 

I am wondering, since we only provide sufficient funds to deport 

about 4 percent of the undocumented population a year, and since 

the statute itself charges the Homeland Security secretary to establish national immigration enforcement policies and priorities, how 

would it lead you to a conclusion that establishing those priorities 

to fit within the funding made available would somehow be impermissible? Mr. Dupree. 

Mr. CONYERS. Mr. Chairman, I ask unanimous consent that the 

gentlelady be granted 2 additional minutes. 

Ms. LOFGREN. Mr. Dupree. 

Mr. MARINO. One minute. 

Mr. DUPREE. Congresswoman, my view is that there is no question that the executive and Department of Homeland Security have 

the constitutional power to set enforcement priorities. In my view, 

the setting of enforcement priorities is inherent in the concept of 

discretion, and it is something that is committed by our Congress 

to the executive. Where I think that President Obama has gone 

awry is, number one, in indicating that he essentially is going to 

abandon enforcement as to a very significant percentage of the affected population, and number two is that this really goes beyond 

a mere statement of saying, We are not going to remove you. This 

amounts to a determination that will enable potentially 5 million 
141 

***The submissions referred to are not printed in this hearing record but are on file with the 

Committee. A list of this these submissions is also available in the Appendix on page 189. 

people to claim benefits under Federal law, so it is more than 

just—— 

Ms. LOFGREN. If I may. There are no benefits, and I would like 

to thank Mr. Sekulow. We don’t agree on the constitutional question, but you do note that section 274A(h)(3) of the Immigration 

Nationality Act does apply—— 

Mr. MARINO. Congresswoman’s time has expired. 

Ms. LOFGREN. May I ask unanimous consent to put some things 

into the record, please? 

Mr. MARINO. Yes, I was going to ask you that, if you wanted to 

put some documents in. 

Ms. LOFGREN. I would ask unanimous consent to put the following statements into the record: Statements by the National Hispanic Christian Leadership Conference; the Lutheran Immigration 

Refugee Service; the Episcopal Church; the Church World Service; 

the AFL/CIO; the American Federation of State, County, and Municipal Employees; the American Federation of Teachers; the Asian 

Pacific American Labor Alliance; Bend the Arc; the Coalition of 

Black Trade Unionists; the Economic Policy Institute; the Communications Workers of America; Jobs With Justice; the Labor Council 

for Latin American Development; the Laborers International Union 

of North America; the National Education Association, the United 

Auto Workers; the United Food and Commercial Workers International Union; the United Steelworkers; Asian Americans Advancing Justice; the American Civil Liberties Union; the American Immigration Council; the American Immigration Lawyers Association; 

Appleseed; Common Cause; Farm Worker Justice; Fair Immigration Reform Movement; the Latino Victory Project; Latino American Working Group; the National Council of La Raza; One America; and We Belong Together; along with 10 stories compiled by 

United We Dream. 

Mr. MARINO. Without objection, those documents will be entered 

for the record.*** 

Mr. MARINO. The Chair now recognizes the Congressman from 

California, Mr. Issa. 

Mr. ISSA. Thank you, Mr. Chairman. 

Mr. Sekulow, you are familiar with the Youngstown v. Ohio case. 

Mr. SEKULOW. Yes. 

Mr. ISSA. Is there any question in anyone’s mind whether or not 

the basic question of the President is relying on his constitutional 

authority and not on any statutory authority in this case? 

Mr. SEKULOW. Well, he believes he is relying on his constitutional authority. Under Youngstown Steel, I don’t think he meets 

that standard at all. It would be at the lowest ebb they said. 

Mr. ISSA. But presuming that he does. 

Mr. SEKULOW. Yeah. 

Mr. ISSA. Presuming that he is relying, clearly not on the intent 

of Congress—clearly when he talks about work permits and so on, 

going well beyond any statutory visas that exist, he has only his 

constitutional authority. So let me ask a series of questions, and 

I will first ask it to you and then the other witnesses. 
142 

Mr. SEKULOW. Okay. 

Mr. ISSA. If the President decided to expand his current definition to include all persons with health issues, would there be any 

difference in that basis? If he decided—and I will go through a 

quick series. If he decided that any person who had a means of 

support, any person who had gainful employment, any person who 

had a life-threatening disease, any person who was unable to find 

a job in their home country, any person who in fact had been here 

more than 5 years, period, wouldn’t all of those arbitrary categories 

be just as binding and just as legitimate as the one that he has 

created in order to create roughly 5 million or almost half of all 

illegals becoming legal? 

Mr. SEKULOW. If the President’s constitutional analysis was correct, that would be correct, Mr. Chairman. 

Mr. ISSA. So if we allow this authority to be left unchecked, the 

President could at any time pick any category, any group of people, 

and allow them all to stay here, simply under the basis that he created a list of requirements that if they met them, they could stay. 

Mr. SEKULOW. Yes. And under his theory, at any time, he could 

change his mind the next day and say, now you all have to leave. 

That is the problem. 

Mr. ISSA. And let’s go into that because I think for all of you, I 

want this question. Back in 2003, I authored the Alien Accountability Act. That allowed for a 6-year hiatus in deportation of any 

individuals who came forward, voluntarily submitted themselves, 

and stood up for a procedure in which they would only be guaranteed a temporary work permit if they could show that they were 

gainfully employed, and then they would be subject at the end of 

the 6 years, if were not renewed by some other work permit, to 

then leave. 

The interesting thing about that was it looks a lot like the President’s act. The difference, of course, is that it would have lasted for 

more than just the President’s time, but in this case, when the 

President’s term expires, the next President can be just as arbitrary, or even this President, as you said, could be just as arbitrary. 

Mr. SEKULOW. Right 

Mr. ISSA. So the reason I couldn’t get a single Democratic cosponsor, including my good friend Howard Berman when he was here, 

was that the interest groups that were just named by my colleague 

from California all said they will never sign up for this because in 

fact they would come out of the shadows, expose themselves, and 

at any time could be deported. 

From a practical standpoint, are there two truisms, which is, 

one, if you could name this category as broadly as you do, can’t you 

name any category? 

Mr. SEKULOW. Yes. 

Mr. ISSA. And, two, if in fact you want people to come out and 

disclose themselves, on what basis would this lack of full force of 

binding agreement for more than the whim of the President’s next 

morning coffee, why would this cause people to actually come out 

from the shadow? 

Lastly, the gentlelady, I want to know if in fact, if people don’t 

come from the shadows under this act, has the President still given 
143 

them complete immunity, or is this contingent in any way on 

whether or not they turn themselves in because that is something 

the President hasn’t said? If somebody hasn’t signed up within the 

period he specified, would they then be subject to deportation? I 

will get to you last. 

But please, Mr. Sekulow, I know I gave you a lot of questions, 

but the questions I have are broader than the answers the President gave. 

Mr. SEKULOW. Well, I would point to the Administration’s justification under the OLC document where they say that ultimately 

that the only way that this is constitutional is that it is revokable 

at any time and your proposal, your legislation, which would have 

been based on law if passed, would have had a concrete, not only 

constitutional, but a statutory basis upon which to respond to a 

real situation. 

What the President has done—that is why I said if I am the lawyer representing some of these clients, I would be very hesitant to 

say come out of the shadows under the whim of what could be 

changed literally the next day. There is no guarantee in this whatsoever. This does not solve the serious problem that we have in this 

country on immigration. 

Mr. ISSA. Okay. And then probably the second question just because my time has expired. 

Mr. MARINO. Quickly please, because the Congressman’s times 

has expired, but go ahead and answer the question 

Ms. HINCAPIE ́. Sure. So—— 

Mr. ISSA. But I do have 1,200 unanimous consent requests coming up, too. No, just kidding. Please. 

Ms. HINCAPIE ́. So if people—if I understand the question, Congressman, if people don’t come forward, will they still be subject to 

deportation; is that correct? 

Mr. ISSA. If somebody is apprehended not having signed up 

under the President’s plan, he is silent on the question of is Homeland Security simply going to ignore them, or is it contingent on 

signing up because the President implied that it was contingent on 

signing up, but I could find nothing in his order that actually convinced me that it was? 

Ms. HINCAPIE ́. So assuming that if somebody doesn’t come—let’s 

say it is a parent of a U.S. citizen child and they for whatever reason don’t come forward and they later—— 

Mr. ISSA. Like they are smart and know that it is arbitrary and 

could be gotten rid of at any time. 

Ms. HINCAPIE ́. They are deemed 9 months from now to say—and 

they are potentially subject to deportation. They may be considered 

a lower level priority, so the immigration agents maybe in your district, for example, may decide, no, this is a parent of a U.S. child, 

I am not going to deport the because I have got somebody who is 

a national security threat. So those discretionary decisions will be 

made on a day-by-day basis individualized on an ongoing just as 

they were before—— 

Mr. ISSA. But in the case of DACA, the discretion never sent anyone out, right? 

Mr. MARINO. The gentleman’s time has expired. 
144 

The Chair now recognizes Congresswoman Jackson Lee from 

Texas. 

Ms. JACKSON LEE. As I said earlier this morning, in another 

hearing on this topic, I thank in this instance the Chairman and 

Ranking Member for an important discussion that is the responsibility of the United States Congress. And, in that discussion, I 

think it is well clear that different opinions are to be presented. 

I also think it is important for the record for many who are not 

members of this panel to understand that when a particular party 

is in the majority, it gives them the right to have the dominant 

opinion on the panel. The three persons arguing against the Executive order are only reflective of the opinion of the majority. They 

are not reflective of the broad base of legal thought across America. 

I represent to you that there are now 135 law professors and others of prominent law schools from Harvard to Columbia to Washington University to individuals from various law firms, prominent 

who completely disagree with the remaining two members of the 

panel, which I hope gives us a basis for making an intelligent decision which really speaks to what all of us would like to do is to 

have legislation passing comprehensive immigration reform. 

But my dear friends who are there who I thank for being here 

are not the final statement. They are a representative sample of 

the opposition. We have exactly one witness and those of us who 

have a different perspective. So I would like to quickly put into the 

record a statement from Dr. Sharon Stanley-Rae, Christian Church 

Disciples. I come from it from a humanitarian perspective. I think 

the executive order is narrowly drawn, but she says, I come with 

hands full of faith statements like my own from dozens of faith 

communities that repeatedly name our values for people over politics, community safety over partisan strategies, family unity and 

welcome over fears of foreigners and humanitarian compassion for 

children and families above rhetoric and rank. 

I ask unanimous consent to put her entire statement in the 

record. 

Mr. MARINO. Without objection. 

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Ms. JACKSON LEE. I believe the Arizona case in 2012, Mr. 

Sekulow, completely disagree with your interpretation. Executive 

orders are narrowly drawn. The Executive order the President 

issued is clear on its face, and therefore, the example of my good 

friend from California about people who have different reasons for 

possibly coming out are clearly not in the executive order. It lists 

the priorities according to terrorism, felons, multiple misdemeanors. It is written out very clearly. 

And, in this case, it clearly indicates that the Supreme Court has 

said that discretion in the enforcement of immigration law embraces immediate human concerns, unauthorized workers trying to 

support their families, for example, who are likely to pose less danger than aliens and smugglers or aliens who commit a serious 

crime. The equities of an individual case may turn on many factors, 

including whether the alien has children born in the United States, 

clearly what the President has enunciated. 

So, in essence, although you are dynamic legal scholars, and 

those of us who have gone to law school relish your cerebral ability, 

but you are make a mountain out of a mole hill, and you are 

wrong. You are absolutely wrong. It is based on emotions. It is 

based on opposition to immigration, despite your constitutional 

prowess, and I say that globally. I am not pointing out any names 

here. Because we have a Supreme Court decision that says that 

this Executive order is within the confines of its discretion. 

Let me ask Ms. Hincapie ́ this question, and I have a question for 

Mr. Dupree, quickly if I can. 

If you would, Ms. Hincapie ́, we have been hearing about stay 

under the covers, don’t come out. That is frightening people and, 

again, just putting people in a box. What is your thought about 

continually telling people that, as a lawyer, I would advice my clients not to take advantage of this defining Executive order? 

And then I just quickly want to ask Mr. Dupree that he quoted 

from one of the counsels from Bill Clinton. I want to ask him who 

that counsel was and what was the approach of his citing that person. 

Yes, Ms. Hincapie ́. 

Ms. HINCAPIE ́. Great. So thank you for the question, Congresswoman, and for your leadership on immigration for many years. 

The National Immigration Law Center has been very involved in 

the implementation of the Deferred Action for Childhood Arrivals 

program. The new program announced by the President, the Deferred Action for Parental Accountability, is very similar and premised on the same thing. As lawyers, as a legal organization, we 

do advise individuals of what the risks are, and the fact that this 

is an individualized adjudication that someone at USCIS is going 

to review the applications, look at all of the evidence, are you eligible for the criteria, do you meet the criteria, and only at that point 

will the Department of Homeland Security decide whether the person merits deferred action. 

However, the reason we do advise that individuals come forward 

is because the status quo is unacceptable, as I shared in my testimony, and parents, the mother who was here earlier today, Isabel, 

prefers to come out of the shadows to make sure that she is there 
148 

for her daughter at the end of the day, so they will take that risk, 

even if a future Administration may terminate this program. 

Ms. JACKSON LEE. Mr. Chairman, would you yield Mr. Dupree to 

answer the question that I did get on the record, please. I would 

ask for courtesy. 

Mr. MARINO. You have 30 seconds, sir. 

Mr. DUPREE. Absolutely. 

Ms. JACKSON LEE. Who are you citing from? 

Mr. DUPREE. It is Walter Dellinger’s opinion. I believe Congresswoman Lofgren was correct. It was the opinion on the Federal Government’s ability to switch the finding arbitration. 

Ms. JACKSON LEE. Then you are aware that he has said that this 

Executive order is consistent with governing law with the policies 

that Congress has expressed in the statutes? 

Mr. DUPREE. Yes, and if I could address that. Look, Congresswoman Jackson Lee, I like law professors. I have been known to 

associate with law professors, but the day that we choose to elevate 

the opinions of the law professoriat over the text of the Constitution is the day that I fear for the Republic. 

Ms. JACKSON LEE. I doubt that that is the case, but he was in 

the Office of Legal Counsel, and I imagine he had to read the Constitution, but we will disagree but not be disagreeable. 

Thank you so very much, Mr. Chairman. I yield back 

Mr. MARINO. The Chair recognizes Congressman King. 

Mr. KING. Thank you, Mr. Chairman. 

I thank the witnesses for your testimony and your patience for 

us to come back to this hearing after our votes on the floor. I would 

first ask if each of you have read the 33-page OLC guiding document; is that true for each of the witnesses? 

And let the record reference that they nodded or affirmed yes to 

that. 

And so I would take you back to a time in my memory when then 

Secretary of Homeland Security Janet Napolitano sat at that very 

table and we had a discussion about the lack of constitutionality 

of the Morton memos and DACA, and I promised her that day that 

she would face litigation, and, of course they have; drug out, as we 

likely expected. 

But I also recall in that foundational document that she referenced on an individual basis only seven times in a one-and-athird page document, and so it came to my attention when I was 

reading through this 33-page OLC component of advice for the 

President that purports to rationalize how the President conduct 

himself and can conduct himself in a constitutional fashion, I put 

it through my Word processor, and I came up when I used these 

phrases—‘‘case-by-case,’’ ‘‘discretion,’’ ‘‘individual’’—those three 

searches, and I came up with 152 incidents of it in this 33-page 

document, which caused me to think that I know that they were 

preparing for the litigation in the Morton memos that had seven 

mentions of individual basis in it, but I didn’t realize how paranoid 

they were about the litigation that is bound to come in the 33-page 

document here of the OLC, the Office of Legal Counsel. 

I would also like to put into the record a few things that I picked 

out of here. I mean, I read not the full thing studiously like you 

all did, but I got through the first third of it pretty well, and I con-
149 

cluded there is enough advice here that says no to the President 

that if I had been he, I would not have followed it any longer. I 

would have decided, Well, I guess maybe I was right the 22 times 

I told the public I didn’t have the authority to do this. 

And so here is one thing I think that is important out of the OLC 

opinion: Deferred action does not confer any lawful immigration 

status. 

Let’s put that one up in the record. Another one: DHS’ decision 

not to seek alien removal—well, that is just an underlying component, but I continue—may apply for authorization to work in the 

United States under certain circumstances, that being a discretionary decision of the executive branch of government as I understand it. 

I skipped to page 6 where this document says that ‘‘the executive 

cannot, under the guise of exercising enforcement discretion, attempt to effectively rewrite the laws to match its policy preferences.’’ 

And continuing, ‘‘an agency’s enforcement decision should be consonant with, rather than contrary to, the congressional policy underlying the statutes the agency is charged with administering.’’ 

And further, in the same paragraph, I might add, on page 6, 

‘‘When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb.’’ 

There is more. In fact, I think I will continue. On page 7, it says, 

‘‘Third, the Executive Branch ordinarily cannot, as the Court put 

it in Chaney, ‘consciously and expressly adopt[] a general policy’ 

that is so extreme as to amount to an abdication of its statutory 

responsibilities.’’ 

There is more. This is the first third of this, at least, is a devastating article, if you are the President trying to defend your action. And so I would start first with Mr. Sekulow, and could you 

begin to explain to me what I am missing as I read this OLC document? 

Mr. SEKULOW. You know, the President’s lawyers clearly advised 

him that in order for his Executive order or Executive action, in 

their opinion, to meet constitutional scrutiny, there would have to 

be individual case-by-case determination which is revokable at any 

time at the agency’s discretion, which is markedly different than 

the deal the President offered when he gave his speech. 

Mr. KING. And so, on an individual basis only, would that be a 

class or a group of 5 million people, perhaps? 

Mr. SEKULOW. Well, the reality is an individual determination on 

a case-by-case basis with 5 million people cannot happen. 

Mr. KING. Mr. Dupree, would you care to comment? 

Mr. DUPREE. Congressman King, I shared your reading of that 

memo, and that is the thing that struck me as remarkable is that 

the memo lays out certain legal premises correctly, in my view. 

Many of them are correct, but then the conclusion it draws from 

those legal premises is profoundly flawed. The people at OLC are 

very smart, and I think they understand what the law is, and I 

think, as I said, in portions of the memo, they accurately state the 

law. But I think they completely misfired in advising the President 

that what he was proposing was constitutional. It plainly is not. 
150 

****See supra text accompanying note *. 

Mr. KING. And I thank you. And I did read the concluding paragraph, and I will just put that into the record. It says, in sum, for 

the reasons set forth above, we conclude that the DHS’ proposed 

prioritization policy and its proposed deferred action program for 

parents of U.S. citizens and lawful permanent residents would be 

legally permissible—I would say that is inconsistent with at least 

the first 7 or 8 pages—but that the proposed deferred action program for parents of DACA recipients would not be permissible. 

When I read that, I think could it be that they have said that 

the DACA recipients came here due to no fault of their own so it 

has to be somebody else’s fault, would that be the parents of the 

DACA recipients, Ms.—— 

Mr. MARINO. The gentleman’s time is expired. You can answer 

the question. 

Mr. KING. Could I ask the witness to answer the question, 

please, Mr. Chairman? 

Ms. HINCAPIE ́. Sure. Really quickly. I think the—of course, I respectfully disagree with my colleagues here to the right, which is 

that the OLC memo is very carefully written. And it lays out what 

the President’s limitations are and clearly states that the program 

that the President has announced falls within those legal limits. 

And the way that the current DACA program exists is individualized adjudications. I tell you that because I personally have assisted individually young immigrants who qualify for DACA and 

put their applications together so that they can be adjudicated. 

Mr. KING. But could it be that the parents were the ones at 

fault? 

Mr. MARINO. Okay. The gentleman’s time is expired. His documents will be entered into the record.**** 

The Chair now recognizes Mr. Cohen. 

Ms. LOFGREN. Mr. Chairman, could I ask unanimous consent to 

put two things in the record? 

Mr. MARINO. Go ahead. 

Ms. LOFGREN. There has been a lot of discussion about—— 

Mr. MARINO. Quickly, please. 

Ms. LOFGREN [continuing]. Authorized employment, so I would 

like to put Section 274A(h)(3) of the Immigration Nationality Act 

along with the regulation providing that those aliens who have deferred action may receive work authorization in the code. 

Mr. MARINO. Without objection. 

[The information referred to follows:] 
151 
152 

*****The information referred to is not reprinted in this hearing record but can be accessed 

at http://www.uscis.gov/iframe/ilink/docView/SLB/HTML/SLB/act.html. 

Mr. MARINO. Mr. Cohen, you are up. 

Mr. COLLINS. Mr. Chairman, could I just ask unanimous consent 

that—to instead of citing it, that we just admit the entire Immigration Naturalization Code into the record so that we don’t have to 

continue to go through piece by piece.***** 

Mr. MARINO. I have no objection to that. 

Mr. COLLINS. This law is being ignored now, but it is law. 

Mr. MARINO. Mr. Cohen. 

Mr. COHEN. Thank you. 

Ms. Hincapie ́, let me ask you a question. I believe you have said 

that you believe the President’s actions are lawful; is that correct? 

Ms. HINCAPIE ́. That is correct. 

Mr. COHEN. And it is because he has discretion, prosecutorial 

discretion. Some people have asked that he had said in the past 

about some set of facts or laws that he didn’t have this authority, 

and he changed his opinion, and you gave a reason for that, but 

let me—what is the—and I don’t recall. I don’t know if anybody 

here does. What were the facts upon which when the President 

said he didn’t have the authority? Were they the same limited situation as he has got going now where he is just doing deferred prosecution? Was the other responses to people that wanted to get a 

fast track to citizenship and some other things that are not part 

of this program? 

Ms. HINCAPIE ́. Sir, that is a very good question, Congressman. 

What the President was responding to was basically demands from 

the immigrant rights community, from grassroots organizations, 

and from immigrants themselves to stop all deportations. And that 

was a consistent demand, which he often said, no, I cannot do that. 

And then the second piece which I tried to explain in my testimony earlier, the context, the timing of when the President was 

making those comments was always because he was specifically focused on getting comprehensive immigration reform done through 

legislation. 

Now I should share, on March 14th of earlier this year, I sat 

across from the President and specifically talked to him about the 

need for him to exercise his legal authority, and even there, he 

said, I agree, but I am focused on immigration reform, and all of 

you immigrant advocates also need to be focused on immigration 

reform. And he disagreed with the extent of authority that we believe he has, and one of those examples is the parents of DACA or 

workers. We believe at the National Immigration Law Center that 

workers who have been here for over 5 years who meet certain criteria should potentially be eligible. 

So this Administration has decided, by consulting the Office of 

Legal Counsel, to take a much more conservative approach about 

what kind of discretion they are willing to take on and also have 

set forth the specific enforcement priorities. 

Mr. COHEN. And Mr. Sekulow, you agree that—well, first, let me 

finish up with Ms. Hincapie ́. The foundation upon which the President acted that you believe is constitutional is the same foundation 
153 

that President Reagan and President George Herbert Walker Bush 

acted upon; is that correct? 

Ms. HINCAPIE ́. Absolutely. They have all—every Administration, 

Republican and Democrat, including Presidents Reagan and President Bush, Sr., used prosecutorial discretion to provide—at the 

time, it was voluntary departure. And here it is the same thing. It 

is deferred action. It is simply a different type of prosecutorial discretion, a different type of deferred action. 

Mr. COHEN. Thank you. 

Mr. Sekulow, you said you agreed that—and maybe differed a little bit in degree, but that President Bush and Reagan, and you 

threw in Clinton and maybe Bush, II, that they also were wrong 

and that four wrongs don’t make a right. 

Mr. SEKULOW. I basically what I said was constitutional violations don’t get better with time, and I don’t see an underlying—this 

is my view. I don’t see an underlying statutory base. I am sympathetic with what they are trying to do, as I am with the President, 

but that doesn’t mean there is a constitutional base on which to do 

it, so—— 

Mr. COHEN. Well, let me ask you this, and I know you are not 

a politician. But why is it that in all those other four instances, nobody came out and questioned the President’s authority from either 

side—— 

Mr. SEKULOW. Yeah. 

Mr. COHEN [continuing]. And and nobody came out and filed a 

lawsuit and nobody even suggested the possibility of impeaching 

Presidents Bush, Reagan, Clinton—they did get to Clinton for 

whatever else, but—and then Bush. What is the difference? Why 

is this President—why do they say it pass over different from all 

other Presidents? 

Mr. SEKULOW. Oh, sorry. 

Mr. COHEN. Yeah. 

Mr. SEKULOW. I think, Congressman, you answered it. There is 

a political element it to, and it is the sheer numbers and scope of 

what we are dealing with. You are dealing with 5 million people. 

And, you know, when you ask about the question, which I think 

was a good one, about was the President talking about deportation 

or was he talking about something else, that is a good question, but 

let me read you the exact quote. 

He was at a speech. He was giving a speech. He had hecklers, 

much like we saw today, that were concerned about this. And they 

were saying, Stop the deportations. And the President said, Now, 

you are absolutely right that there have been significant numbers 

of deportation—that is true—but what you are not paying attention 

to is the fact that I just took an action to change the law. 

So the President views what he did, even though the OLC 

doesn’t say that, but the President viewed it as stopping deportations. And he said he took action to change the law. So I don’t 

think what any of these Presidents have done is more than constitutional framework. That is in my view. 

Mr. COHEN. Ms. Hincapie ́, do you believe—and you are not a politician either. 

Ms. HINCAPIE ́. I am not. 
154 

Mr. COHEN. That the reason why the response to this has been 

so different under this President, do you believe it is just because 

of the number, or do you believe that there is some other reason 

that makes this President different from all other Presidents? 

Ms. HINCAPIE ́. I would have to say that I do believe this is different. He is the first African American president. He is being attacked for a number of issues, and historically, every single President, Republican and Democrat since Eisenhower, have used their 

prosecutorial discretion and used their executive authority. 

I would also add that when Bush, Sr., exercised that prosecutorial discretion, they, too, believed that they were going to be covering about 40 percent of the undocumented population at the time. 

And it was after Congress expressly said that they were not going 

to cover the children and spouses of immigrants who were legalized 

under IRCA. There was late Senator Chafee had an amendment 

that was expressly denied and defeated that would have done what 

President Bush decided to do anyway. 

Mr. COHEN. I thank each of you. 

Thank you, Mr. Chair. 

Mr. MARINO. The Chair recognizes Congressman Franks. 

Mr. FRANKS. Well, thank you, Mr. Chairman. 

And I thank all of you as witnesses for being here today. 

Mr. Chairman, of all of the relevant premises I think we could 

consider, perhaps the most foundational would be to simply read 

the oath that President Barack Obama made when he laid his 

hand upon the Lincoln Bible almost 6 years ago: I do solemnly 

swear that I will faithfully execute the Office of President of the 

United States and will, to the best of my ability, preserve, protect, 

and defend the Constitution of the United States. 

Mr. Chairman, I believe the recent Executive action by the President on illegal immigration is categorically incompatible with that 

oath. I am also convinced that there are very few things a President can do more dangerous to a republic such as ours. If American 

Presidents in the future should consider these days precedents and 

consider themselves unconstrained to the Constitution as a matter 

of routine, the rule of law in America will be no more, and so much 

of what so many men and women have died on dark battlefields 

to protect will be undone. 

These are not light issues, Mr. Chairman. 

And so, Mr. Sekulow, my first question is to you, sir. Justice of 

the Supreme Court James Wilson once explained that the Take 

Care Clause meant that the President has the ‘‘authority not to 

make or alter or dispense with the laws but to execute and act the 

laws which are established.’’ So, sir, do you believe that the President’s recent actions comport with Mr. Wilson’s conclusions, and is 

the President refusing to adhere to the Take Care Clause in an attempt to evade the will of Congress? 

Mr. SEKULOW. I think that is the fundamental question, and it 

is not the policy issue of whether it is good or bad as far as immigration reform goes. It is, is the President’s action moored in constitutional authority? In my view, it is not. 

Mr. FRANKS. Mr. Dupree, let me ask you. You state in your testimony that when President Bush was unable to get comprehensive 

immigration reform through Congress, ‘‘that we did not attempt to 
155 

achieve through executive fiat what we could not achieve through 

the legislative process. We respected the system the Framers established.’’ That is your testimony. Do you believe that this Administration is respecting the Constitution when it grants deferred action to a class of millions of unlawful immigrants? 

Mr. DUPREE. I do not, Congressman. I do not think that the 

President’s actions are consistent with the system that our Framers established, and I would point out that one of the ironies is that 

the Bush administration, and particularly the Justice Department 

in which I served, was often criticized for excessive assertions of 

executive power. And yet when it came to immigration, we held 

back. We did not act through executive fiat. We did not act through 

executive order, but rather, we deferred to the Congress, we respected the congressional role under Article I, Section 1—Article I, 

Section 8, which confers the power to grant—make immigration 

laws on this Congress, and we held back. 

Mr. FRANKS. Mr. Sekulow, let me ask you, if a President holds 

himself unconstrained to the Constitution, what are the implications to a republic like ours? 

Mr. SEKULOW. It could end up with lawlessness. I mean, the real 

problem here, and I said this in my testimony earlier, and we said 

in our written submission, is that under the President’s lawyers interpretation of this executive action, the President could wake up 

tomorrow morning and say, you know what, that executive action 

I took 2 days ago, I don’t want to do that anymore, and you now 

have these people apply for something that doesn’t exist, and I 

think that is part of the problem here. If you are not moored in the 

Constitution, the danger to the republic is the separation of powers 

becomes meaningless, which was a major—it is our entire constitutional framework. 

Mr. FRANKS. Yeah. Well, Mr. Chairman, I guess I would just suggest to you that the issue that we are dealing with here in the central consideration is one of profound significance, and if we allow 

the rule of law to be jettisoned, which it appears that we may be 

on that road, then I am afraid we would all owe Great Britain a 

pretty profound apology for that little unpleasantness we had with 

them a few centuries back. 

Ms. JACKSON LEE. Would the gentleman yield? 

Mr. FRANKS. I would yield back. 

Ms. JACKSON LEE. Would the gentleman yield? 

Mr. FRANKS. I would yield. 

Ms. JACKSON LEE. I thank the gentleman. 

I started by acknowledging that there are differences of opinion, 

but I really think we can work through this, and I would only say 

to the gentleman, an Executive order—and both to the gentlemen 

here—is limited by the President’s tenure. It is temporary. The 

President knows that. I think that is a bogus argument, but what 

we can do is we can pass, Mr. Franks, with you, immigration law 

by this Congress, and I hope we will do that. 

With that, I yield back, Mr. Chairman. 

Mr. FRANKS. Thank you, Mr. Chairman. 

Mr. MARINO. The Chair now recognizes Congressman Johnson. 

Mr. JOHNSON. Thank you, Mr. Chairman. It should serve as no 

surprise to anybody in this room that the first hearing of this Com-
156 

mittee that we would have after our return from our August break, 

or excuse me, after our return from Thanksgiving. We have had so 

many breaks; I am getting confused about it. But you know, our 

very first hearing, we only have two more weeks to go, and this is 

a messaging hearing, as opposed to a substantive oversight hearing 

of presidential action. This is just another example of the strategy 

that Republicans have employed since the very moment that President Obama was sworn into office, and that is to obstruct everything that the President set out to do. 

Now, they won’t give the President credit for being the deporter 

in chief. I mean, he has deported, under his Administration, more 

people than any President in history. Do you think you would ever 

hear a Republican give him praise for that? No. They will find 

something to obstruct that process, so it doesn’t matter what it is. 

It is just we are going to say no to it, and so, then you get a group 

of lawyers together. My wife is lawyer, by the way. I mean, we 

have been married for 34 years, and we have been lawyers the 

whole time. And man, we sit down, whatever I say, she is going 

to take issue with from a legal perspective. Any legal issue that we 

start discussing, she is automatically going to take the opposite 

side, and she is going to argue it earnestly and convincingly, and 

you three, along with the fourth gentleman was here, have done 

the same thing, and I believe that you feel earnest about the topic 

here today. 

But I also know that you are lawyers, and lawyers can argue either side of an issue and do so compellingly. And so my hat is off 

to you because all three of you all are topnotch lawyers, litigators, 

and that is what lawyers do, and lawyers also take abstract principles of law, apply them to the facts that a client will present to 

you, and then you will give the client the options. You won’t select 

the option for the client. You won’t direct the client to do this, but 

you will give the client a range of options, and the client will decide 

for him or herself which option to take, and then if you want to 

retain that client because that client pays well, you are going to go 

to court and you are going to argue for whatever position that client decided upon, and you are going to do so very earnestly, and 

you are going to do it convincingly, and you may be fortunate 

enough to win the case, and that is what lawyers do and that is 

what you all are doing. 

And that is what I used to do. I still do it when I argue with my 

wife, but this, ladies and gentlemen, is not a courtroom. This is a 

legislative chamber, and our power as a legislature comes out of 

Article I of our Constitution, and so we are sitting here talking 

about Article II, and there is not one thing that us legislators here 

with Article I power can do about Article II power, other than to 

sue the President, and we don’t have to have this hearing to do 

that. 

We don’t even have to have a hearing for the Republicans to decide that they are going to impeach the President or that we are 

going to file a lawsuit on him, or we are going to prosecute him. 

We don’t need that. So what this body is doing is actually wasting 

time when we could be passing comprehensive immigration reform, 

just like the Senate did almost 2 years ago, and then we are refusing to do our obligation to the people that they elected us to do. 
157 

This is the most do nothingness Congress in the history of mankind, and we are doing nothing today other thank what we have 

always done in this Congress under Republican leadership, and 

that is to say no, obstruct the President, and so I don’t have any 

questions. 

I think each one of you all have argued your positions admirably, 

and if I were the judge, I would be deciding this case, my ruling 

would go in favor of the minority, the underdog. 

Mr. MARINO. The gentleman’s time is expired. 

The Chair now recognizes Congressman Gowdy. 

Mr. GOWDY. I thank the gentleman. 

I thank Mr. Chairman. 

Ms. Hincapie ́, among many limitations in life is my inability to 

glean other people’s motives or be able to read their minds. I could 

have sworn in response to a question you received from Mr. Cohen, 

you suggested race was the basis for why we may have this constitutional perspective. Did I understand you correctly? 

Ms. HINCAPIE ́. I believe I was responding to the question about 

is there an explanation about why, despite the fact—— 

Mr. GOWDY. Well, let me offer another explanation to you, okay. 

Not a single Republican who is here right now ever served under 

a Republican President, not one, so I hope I do live long enough 

to hold a Republican President to the exact same standard that I 

am holding this one, but for you to run to race as the explanation 

for why we hold the position that we do—Harry Reid had a very 

different perspective on recess appointments when there was a 

Texan in the White House. And none of us accused him of geographic discrimination. In fact, hell, for that matter, Senator 

Obama had a different perspective on executive overreach than 

President Obama. And nobody runs to race as an explanation for 

that. So I would just caution you to be careful when you try to import motives to people. 

With that, what are the limits of prosecutorial discretion? 

Ms. HINCAPIE ́. So among the limits of prosecutorial discretion is 

that the President must comply with existing statutes, such as the 

appropriations. So the President can’t simply stop deporting everybody, and in fact, what they have done here is they have listed new 

priorities, so—— 

Mr. GOWDY. So he can’t stop deporting everybody. Well, I mean, 

what are the limits? So as long as he deports one person, then that 

is a proper exercise of prosecutorial discretion? 

Ms. HINCAPIE ́. No, under the current appropriations, the current—— 

Mr. GOWDY. I am not talking about appropriations. I am talking 

about the constitutional doctrine of prosecutorial discretion, which 

if you marry up with the pardon clause means you don’t have to 

enforce it, and if they do break it, you can pardon them for it. 

Ms. HINCAPIE ́. Right. Under the constitutional doctrine, we 

should take two pieces. One is you have got the Take Care Clause, 

which says that the President must take care to enforce the laws 

that exist. 

Mr. GOWDY. Ms. Hincapie ́, your answer is much more complex 

than my question. What are the limits of the doctrine of a prosecutorial discretion? 
158 

Ms. HINCAPIE ́. The limits are that the President must enforce the 

laws based on statute, so one is—— 

Mr. GOWDY. I thought he just announced he wasn’t going to do 

that, that he was carving out categories and exceptions. 

Ms. HINCAPIE ́. In addition to—— 

Mr. GOWDY. And not on a case-by-case basis, too. For entire categories. 

Ms. HINCAPIE ́. No, he is not stopping, he is not saying that he 

is not going to enforce the law whatsoever vis-a-vis those individuals. He is saying he is creating a program by which individuals 

can come forward if they meet certain criteria, and they will be 

held accountable to apply, pay a fee, pass a criminal background 

check, and—— 

Mr. GOWDY. But that is not the current law, right? 

Ms. HINCAPIE ́. That is what is possible under deferred action, 

and that is what he has developed, correct. 

Mr. GOWDY. Well, I want to talk to you for a second about that 

background check, and I want to get into the policy a little bit. Can 

you tell me what a nonserious criminal is? Because when I look at 

the White House talking points, they are interested in serious 

criminals, so tell me what a nonserious criminal is. 

Ms. HINCAPIE ́. It could include somebody, for example, who has 

been detained for shoplifting, let’s say a, I don’t know, a 22-yearold who takes lipstick, and that is a misdemeanor and she gets—— 

Mr. GOWDY. So just misdemeanors. Nonserious criminal refers to 

misdemeanors convictions? 

Ms. HINCAPIE ́. Right. And, in fact, there are certain misdemeanors that are considered serious criminals under the recent 

memos from the Department of Homeland Security as well. 

Mr. GOWDY. How about domestic violence? How many domestic 

violence convictions can you have and still remain? 

Ms. HINCAPIE ́. I believe domestic violence is considered a serious 

crime under the new—— 

Mr. GOWDY. It wasn’t under the comprehensive Senate immigration bill, which I have heard lots and lots of my colleagues embrace. I think you can have up to three domestic violence convictions and still remain on a path to something under the Senate 

version. How about recidivist DUI? 

Ms. HINCAPIE ́. I believe DUI completely disqualifies you as well. 

Mr. GOWDY. A single DUI conviction—— 

Ms. HINCAPIE ́. Conviction, correct. 

Mr. GOWDY [continuing]. Is considered a serious criminal. 

Ms. HINCAPIE ́. That is my understanding. 

Mr. GOWDY. Even though it is a misdemeanor? 

Ms. HINCAPIE ́. That is my understanding, yes. 

Mr. GOWDY. Where could I go to find out whether or not that understanding is correct or not? It wasn’t on the White House talking 

points. They talked about gang members, but I am not aware of a 

Federal crime for being a member of a gang. Is there one? I know 

it is a sentencing enhancement. Is there a crime for being a member of a gang? 

Ms. HINCAPIE ́. Well, in fact, that is some of the concerns that 

some advocates have that if it is simply—if you are being consid-
159 

ered a gang member because you live in a certain ZIP code and you 

are being associated or is it really based on—— 

Mr. GOWDY. Well, I understand your concern is that it might 

catch too many people. My concern is the opposite, that it won’t 

catch the right people, so it is not a crime to be a member of a 

gang. You have to commit another underlying offense, and then it 

is a sentence enhancement, so how are you going to determine who 

the gang members are? 

Ms. HINCAPIE ́. Well, there are gang databases that exist. We assume, again—— 

Mr. GOWDY. So if you are in a gang database, will you be deported? 

Ms. HINCAPIE ́. We don’t have enough information from the Administration yet, right. Remember, this was just announced. 

Mr. GOWDY. Well, I have got the talking points that gang members are going to be deported. 

Ms. HINCAPIE ́. But the talking points are not sufficient. They will 

be issuing guidelines with respect to how they will implement this 

program. 

Mr. GOWDY. Who is ‘‘they’’? 

Ms. HINCAPIE ́. The Administration, the White House and the Department of Homeland Security. 

Mr. GOWDY. Thank you, Mr. Chairman. 

Mr. MARINO. The Chair recognizes Ms. Chu. 

Ms. CHU. Ms. Hincapie ́, I want to address this claim that President Reagan and Bush only did a deferred action as a cleanup 

measure for laws that were already agreed upon by Congress, and 

that is IRCA, of course. However, isn’t it true that Congress actually considered whether the spouses and children of persons who 

obtain legal status through IRCA should be granted special protection under the law and explicitly chose not to do so, and that both 

President Reagan and Bush chose to expand this law anyway with 

deferred action and work authorization? 

Ms. HINCAPIE ́. Yes, Congresswoman, and thank you for your 

leadership, particularly on the Power Act. Yes, absolutely. The big 

difference between what Presidents Reagan and Bush, Sr., did 

versus what President Obama has done—they exercised prosecutorial discretion; they are using existing statute to provide deferred 

action and allow people to get work authorization—however, both 

under IRCA, the Congress considered and rejected the fact that 

children and spouses who didn’t meet certain criteria would not be 

eligible, and then after IRCA was passed, the quote-unquote cleanup, there were a number of amendments that were introduced at 

different points, the Family Fairness Act, that also, that failed. 

One was with cloture—the cloture vote failed, and then, secondly, 

on October 7, 1987, the late Senator Chafee introduced an amendment specifically to amend the Immigration Nationality Act, to 

waive the continuous residence requirement under the legalization 

program for spouses and children of qualified legal aliens, and that 

also was defeated. 

Despite the fact that those different attempts by Congress, and 

this was a Republican Senator, to address this issue, Presidents 

Reagan and Bush, Sr., decided this was unfair to deport the children and spouses of people who were legalized under IRCA, and 
160 

secondly, they recognized they had the legal authority to exercise 

that discretion and provide voluntary departure for those individuals and eventually work authorization as well. 

Ms. CHU. So both Presidents Bush and Reagan acted in contrast 

to Congress, not in conjunction with Congress. 

Ms. HINCAPIE ́. Correct. They acted against congressional will and 

exercised their legal authority, which was well established and continues to be well established today. 

Ms. CHU. Okay. It has also been said repeatedly today that this 

deferred action is unfair because the beneficiaries will jump in line 

before millions of others who are waiting in line. 

Why is this incorrect, Ms. Hincapie ́? 

Ms. HINCAPIE ́. So, unfortunately, again, this is incorrect because 

there is a lot of misinformation about what the deferred action program is. People are not getting onto any path to citizenship. They 

are not becoming lawful permanent residents. They are simply getting a temporary reprieve from deportation and will be able to 

work because the regulations allow them to get work authorization 

if they get deferred action. 

So we still have a need, and as Congressman Johnson was just 

saying a few minutes ago, there is a need for comprehensive immigration reform to address the needs of the individuals who are 

waiting in line. Nothing that the President has done changes in 

any way that need for immigration reform. And my understanding 

is H.R. 15 is still pending in Congress. There’s still a few weeks 

left in this session, and I have been very comforted by the number 

of comments many people made today about the support for comprehensive immigration reform, and I would urge every single one 

of you to use the remaining days in this session to pass H.R. 15. 

Ms. CHU. Ms. Hincapie ́, it’s been also said repeatedly today that 

this deferred action creates a class of individuals who are considered for deferral of deportation a blanket, that this is a blanket 

nonenforcement program. Is this a blanket nonenforcement program? And, for instance, with DACA, have there been denials of 

the applications? Can you tell me how many of them there have 

been because I’ve read that it’s 1,377 requests that have been denied. 

Ms. HINCAPIE ́. Right. So, yes, this is not a blanket amnesty or 

a blanket program whatsoever. DACA, the program that’s been in 

existence for the last 2 years as well as the new program are, 

based on individual adjudications, and so, again, individuals have 

to put forth the evidence that they meet all of the criteria, and I 

must say to you, Representative Chu, I mean, we have held large 

clinics through DACA where young immigrants have come with 

reams, volumes and volumes of evidence documenting all of their 

continuing residence, everything from report cards to immunization 

records, the student-of-the-month record, the certificates, letters, et 

cetera, from the school. They have come forward with a lot of evidence, and that is why it has been a successful program, because 

the majority of them have been able to meet the criteria required. 

That said, there are many who have also been denied, and in 

fact, most recently, with the DACA renewal program, we have seen 

an increase in rejections of DACA applications, which we contin-
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ually raise to the Administration to understand the reasons for 

those rejections. 

Ms. LOFGREN. Would the gentlelady yield? 

Ms. CHU. Yes. 

Ms. LOFGREN. I would like—— 

Mr. MARINO. The gentlewoman’s time is expired. 

Ms. LOFGREN. I want to make a unanimous consent request. 

Mr. MARINO. Should we just do a blanket unanimous consent? 

Ms. LOFGREN. No, this is specifically—— 

Mr. MARINO. Please, go ahead 

Ms. LOFGREN. My good friend, the Chairman of the Subcommittee had a number of questions about eligibility for the deferred action program, which is specified in the memorandum 

dated November 20. Those who are priorities for removal, which includes the misdemeanors and the like, are specified in that memo. 

And I would like to, since there were questions about that, put this 

memo in the record so people will understand who is eligible and 

who is not eligible. 

Mr. MARINO. Without objection. 

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Mr. MARINO. The Chair now recognizes Congressman Labrador. 

Mr. LABRADOR. Thank you very much. 

Ms. Hincapie ́, I would like to join my good friend from South 

Carolina and advise you and all the other Members of this Committee. I actually have a question for you. When the Congress went 

after President Clinton, were they racist when they were against 

his policies? 

Ms. HINCAPIE ́. I don’t recall what you are—I am not sure what 

you are referring to, Congressman. 

Mr. LABRADOR. Just any time that the Congress objected to 

President Clinton’s policies, were they being racist? 

Ms. HINCAPIE ́. It is out of context, but your point is well taken, 

both of your points. 

Mr. LABRADOR. When President Clinton was impeached, was it 

because the Members of Congress were being racist? 

Ms. HINCAPIE ́. No. 

Mr. LABRADOR. When the Democrats filed articles of impeachment against President Bush, was it because they were being racist? 

Ms. HINCAPIE ́. No, Congressman. 

Mr. LABRADOR. It was because they disagreed with his policies, 

wasn’t it, and they thought that he had exceeded his authority as 

President of the United States and they thought that he had committed impeachable offenses. 

I disagreed with them, and that is why no one on this side has 

filed articles of impeachment against this President but I—— 

Mr. CONYERS. Yet. 

Mr. LABRADOR. I think you guys might, but I don’t think any Republican wants to do that. I think you might try to do it under Republican hands, but no one is talking about impeachment here. No 

one is talking about anything like that, and we disagree with his 

policies. We disagree with everything he has done on immigration, 

but to assert here in a hearing, in an open hearing under oath that 

it might be racism is why we are disagreeing with the President’s 

policies, I think is beyond the pale. 

Now, let’s talk about some of these facts that are happening 

here. You did not answer the question about what the limit to the 

President’s authority might be under deferred adjudication. Are 

there any limits to his authority? 

Ms. HINCAPIE ́. The limits to his authority have to do with the 

statutory limitations, and so, again, those—— 

Mr. LABRADOR. But you said he created a program. There is no 

statutory program that allows him to do this program. You said it 

in your own testimony that he created a program that now we’re 

using and, according to you, in individualized adjudication, but he 

created that program, right? 

Ms. HINCAPIE ́. Right. The creation of the program is. So, under 

the Homeland Security Act, Congress has charged the executive 

branch, and specifically the Secretary of the Department of Homeland Security. 

Mr. LABRADOR. I understand that, and then you’re going to argue 

that it’s because we don’t have enough appropriations. If the Homeland Security Department started deporting more people than they 
169 

have funds for, can’t they just come to Congress and ask for more 

money to start deporting people? 

Ms. HINCAPIE ́. Yes, they could definitely do that, but that was actually not the argument I was going to make. The argument I was 

going to make was simply that under the Homeland Security Act, 

the Department of Homeland Security has identified priorities for 

who is considered a high level priority, who is a low level priority. 

Mr. LABRADOR. But they don’t get to set those priorities. 

Ms. HINCAPIE ́. Excuse me? 

Mr. LABRADOR. They don’t get to set those priorities. The Congress has set those priorities for them. They have said that there 

is a certain class of people that are here unlawfully and without 

document, and they should be deported. It is not that the Department of Homeland Security that gets to set that, those premises. 

Ms. HINCAPIE ́. So it is a combination of the two, Congressman. 

So under 6 U.S.C., section 202, subsection 5, the statute is very 

clear that the Secretary of Homeland Security shall be responsible 

for the following: Subsection 5, ‘‘Establishing national immigration 

enforcement policies and priorities.’’ 

Mr. LABRADOR. But those priorities are in memos, not in statutes, isn’t that correct? 

Ms. HINCAPIE ́. Well, the statute says the Department gets to decide what those priorities are. And then secondly, as any administrative agency, any executive agency, then gets to decide, based on 

resources, based on policy priorities, based on what is considered 

good public policy, et cetera, they determine a combination of. It’s 

the same way that—— 

Mr. LABRADOR. So if I run for President, and I decide that I don’t 

like any EPA regulations, I don’t like the EPA and I don’t want to 

enforce any of the regulations, can I under prosecutorial discretion 

decide not to enforce any of the EPA rules? 

Ms. HINCAPIE ́. You could, except the legal limitation again would 

be if there is a statute that requires the EPA to specifically enforce 

certain parts of it. 

Mr. LABRADOR. Well, there is a statute that requires them to specifically enforce immigration laws. Now, if I decide that I don’t like 

tax laws, can I decide as President that I don’t want to enforce the 

tax laws? 

Ms. HINCAPIE ́. But, again, that is not, Congressman, with all due 

respect, that is not what this Administration is doing. 

Mr. LABRADOR. That is exactly what this Administration is doing. 

I was an immigration lawyer. You can do an individualized adjudication and I had many of my clients who I asked for deferred adjudication for. And I said, they have a set of facts that makes them 

eligible for deferred adjudication and usually it was because there 

was nothing in the law that allowed them to stay in the United 

States legally, correct, and I think you have done that as an immigration lawyer as well. 

Ms. HINCAPIE ́. Uh-huh. 

Mr. LABRADOR. But in the end, you ask for an individualized adjudication. 

Ms. HINCAPIE ́. Right. 
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Mr. LABRADOR. Not for a whole class of people. You didn’t just 

say, I want every one of my clients who has lived in the United 

States for 5 years to have deferred adjudication. 

Ms. HINCAPIE ́. With all due respect, that again is not what the 

Administration is saying. The Administration is saying there is 

going to be accountability. Individuals who meet certain criteria 

can come forward. 

Mr. LABRADOR. There is no accountability. 

Mr. MARINO. The gentleman’s time has expired. 

The Chair now recognizes Congressman Deutch. 

Mr. DEUTCH. Thanks. 

Ms. Hincapie ́, would you like to finish your answer? 

Ms. HINCAPIE ́. Thank you, Congressman. I was just saying that, 

again, what the Administration is doing is simply saying, here is 

a low-level priority. This is a criteria. Individuals still need to come 

forward, individually and affirmatively, and only at that point are 

they considered for deferred action. There is no blanket, every 

mother and father come today and get a work authorization document. 

Mr. DEUTCH. Thank you. Thanks. 

So I just wanted to take a moment. We’re discussing President 

Obama’s so-called executive overreach, but I fear that the characterization makes light of what is a very sad reality that law enforcement agencies face every day, which is there are limited resources. Officials must pick and choose which crimes and which 

charges to pursue. Every law enforcement agency, from the FBI to 

your local police department, chooses where to focus their resources. A state prosecutor makes choices. Perhaps they direct 

their staff to focus more on prosecuting domestic violence and less 

on marijuana possession. DOJ makes choices. The Administration 

has to determine where to focus its resources. Officials ask themselves questions, do we spend more on prosecuting corruption of 

the banking sector or do we focus more on Medicare fraud? 

In fact, right on down to the most basic level of law enforcement, 

everyday police officers exercise discretion when enforcing our laws. 

They let some speeding drivers go with a warning. They charge 

others with reckless driving. Likewise, when it comes to immigration enforcement, there is no way for the Department of Homeland 

Security to deport more than 11 million undocumented immigrants 

in the United States, even if that’s the goal of some in Congress. 

Mr. Rotunda, when he was here earlier, made it clear, democracies just don’t have mass deportations. So in an era of limited resources, DHS has to prioritize. The Administration is merely articulating something that law enforcement officers do every day, 

the FBI, the CIA, DOJ, the State prosecutors, all the way down to 

city cops. How else can immigration enforcement officials exercise 

their discretion and prioritize which of the approximately 11 million undocumented immigrants should be searched for, rounded up, 

detained, and deported? 

The President’s Executive orders on immigration made clear that 

DHS should direct their limited resources toward deporting those 

undocumented immigrants who commit serious felonies or significant misdemeanors. This enforcement prioritization based on available funding sources will ensure that undocumented immigrants 
171 

who pose a serious risk to the safety of our communities will be deported, while those who have been residing in the U.S. for many 

years and who have worked and who have contributed to our communities can remain. 

I want to give you a practical example. Beatriz Perez has lived 

in the United States for 22 years. She and her four children live 

in my home State of Florida. A trained teacher in Mexico, she 

avoided going into her field here out of fear of deportation, instead 

making a living for her four children by selling fishing nets. 

Lourdes, 24, and Jassiel, 22, both qualified for delayed deportation 

status under the President’s DACA policy. Mariel, 16, and Karen, 

15, are both American citizens. The question is, should Beatrice 

Perez be deported and separated from her children? Should the Department of Homeland Security make this hard-working mother of 

four children, including two American children, a priority for deportation? I ask for unanimous consent to submit a summary of the 

Perez family into the record. 

Mr. MARINO. Without objection. 

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Mr. DEUTCH. Thank you. 

Exercising prosecutorial discretion for our Nation’s immigration 

laws should ensure that law enforcement resources are used in a 

fiscally prudent manner and prevents us from unnecessarily taking 

people away from their families and stowing them in extremely expensive detention centers, which is the last point I would like to 

touch on. 

Here is the problem. For more than a decade this Congress has 

required in the Department of Homeland Security appropriations 

bill that Immigration and Customs Enforcement maintain an average daily detention population. This required daily detention population, the detention bed mandate, has increased over the years to 

34,000 people. It is an unprecedented restriction in law enforcement. It is costly financially. It takes a significant toll on families 

living in our communities. 

Congress requires that 34,000 people be kept in detention facili- ties and provides more than $2 billion a year to hold undocumented 

immigrants in detention facilities. That’s $5.5 million a day. It 

costs $159 to hold a person in detention. Less costly alternatives 

to detention cost between $0.70, and $17 per day. Decreasing our 

Nation’s costly detention population could free up the funds that 

ICE could direct toward other critical responsibilities. 

The detention bed mandate is unprecedented. No other law enforcement agency has a quota on the number of people they must 

keep in jail. None of them. Nowhere in this country. Providing ICE 

with discretion to fill detention beds based on need and not a number imposed by Congress would be consistent with the best practices of law enforcement. To satisfy the daily bed quota ICE officials are forced to find and remove undocumented immigrants from 

their families, even if they have committed no serious crime, even 

if they pose no flight risk to appear for immigration proceedings, 

and many undocumented immigrants have been living in the U.S. 

for years and are productive members of our communities. Removing them from their families to satisfy the bed mandate creates an 

enormous toll on our families. 

Now, Mr. Chairman, as we go through the rest of this discussion, 

let’s bear in mind that this Congress has some things that we can 

do. We can pass immigration reform and, I’m heartened to hear so 

many of my Republican colleagues talk about the need to do so, or 

seemingly their willingness to do so, and it has been so hard to 

have a vote. But let’s also remember that we should stop taking 

away the discretion of law enforcement—— 

Mr. MARINO. The gentleman’s time has expired. The gentleman’s 

time has expired. 

The Chair recognizes Mr. Farenthold. 

Mr. FARENTHOLD. Thank you very much, Mr. Chairman. 

We have already seen what happens when the Administration 

telegraphs what they are and aren’t going to do with respect to enforcing our immigration laws, and that is a crisis on the Southwest 

border. And I’m a South Texas representative. Last summer I was 

down there and witnessed firsthand the problems caused by a 

bunch of children, in some cases completely unaccompanied, in 

some cases with their parents, crossing the border based on a mistaken belief that if they got here, they are going to get to stay. The 
174 

President’s policy has a date certain in there, but these dates tend 

to slip. And we are telegraphing that we really do not have a serious intent to enforce our immigration laws. Not only is this damaging to the balance of power between Congress and the White 

House, they are also going to damage border security and open us 

up to a similar crisis in the future. 

And I want to ask Ms. Hincapie ́ if you think this action is going 

to cause more people to try to cross the border illegally. 

Ms. HINCAPIE ́. No, Congressman, and for two reasons. One is, the 

deferred action program that the Administration has announced 

specifically says that it only covers individuals who have continuously resided in the United States since January 1 of 2010, so 

that’s the last 5 years. So for any individual who comes tomorrow 

or today, they’re not—— 

Mr. FARENTHOLD. All right, but didn’t we under Reagan say that 

we were only going to grant legal status to those folks that were 

here on a certain date, and here we are doing something similar 

again? It seems like we’re wasting our time doing anything before 

the border is secure. 

Mr. Dupree, do you think we’re going to see more people coming 

and attempting to cross the border illegally as a result of this policy. 

Mr. DUPREE. I think we absolutely will. I think that the Administration’s policies are followed very closely outside the United 

States, and I think we saw that with the episode that you referred 

to a minute ago. And I think there also, as you have alluded to, 

there really has been kind of a session of mission creep. I mean, 

it’s been one of a one-way ratchet in which the Administrations, 

and Republican as well as Democrat administrations, say we’ll provide limited relief. And guess which way that relief gradually goes? 

It expands and it expands. 

Mr. FARENTHOLD. It also frustrates me that the President’s action is going to make it more difficult for Congress to find a path 

forward on both securing the border and dealing with immigration 

reform. We have got issues with high-tech workers. We have got 

issues with agriculture workers. We have got a ton of issues that 

we need to deal with, with immigration. And it seems like the 

President is driving a wedge between the White House and Congress in doing this. 

My understanding, you worked with the Bush administration on 

immigration reform. From your work trying to pass immigration 

reform, do you think this is going to damage the prospects of Congress acting? 

Mr. DUPREE. Well, to say the least, if the President asserts the 

power, in my view unconstitutionally, to act unilaterally, it’s basically saying to Congress good riddance. I don’t need you, regardless 

of whether you pass a law, regardless of whether you don’t pass a 

law, I’m going to make immigration law myself. So you all are the 

ultimate judges of this, but from my perspective it is very hard for 

me to see how this would enhance the likelihood of cooperation 

from Congress. 

Mr. FARENTHOLD. And Ms. Hincapie ́ has argued for very broad 

interpretation of prosecutorial discretion. Mr. Sekulow, do you believe that this broad of interpretation, I mean, does that leave us 
175 

anything with the Take Care Clause or has this just become an orphan clause in the Constitution that has no meaning if we take 

this broad of a definition? 

Mr. SEKULOW. I think it is what the court in Chaney said, that 

when you have nonenforcement on such a broad-based scale, that 

you are, in essence, not enforcing the existing law. I mean, I don’t 

know what is so confusing about prosecutorial discretion. A lot of 

you all have been prosecutors. I was a government lawyer. 

Mr. FARENTHOLD. I learned it in law school. You don’t arrest 

somebody for speeding to the hospital. 

Mr. SEKULOW. Yeah. I was a tax lawyer for Treasury, and we 

had cases and sometimes would say, you know what, just based on 

our resources, we are not going to do that particular case. But we 

didn’t say every case involving that particular industry we are not 

going to prosecute. That would not be prosecutorial discretion. That 

would be suspending the enforcement of the law. 

Mr. FARENTHOLD. And my friend Mr. Labrador said he had one 

other question. I will yield the remainder of my time to him. 

Mr. LABRADOR. Thank you. 

Mr. Dupree, were you working with the White House on June 6 

of 2007? 

Mr. DUPREE. Yes, I was. 

Mr. LABRADOR. Do you remember what happened in the Senate, 

because I’m tired of hearing that President Obama has been working so long for immigration reform, do you remember what happened in the Senate when then-Senator Obama decided to vote for 

poison pill amendments that killed the entire immigration bill that 

you guys were working on. 

Mr. DUPREE. It was immensely frustrating. The way that that 

played out was immensely frustrating for many of us who had labored for months, and in some cases years, to effect immigration 

reforms. 

Mr. LABRADOR. And in fact, President Obama, who at the time 

was a Senator, had gone to the White House, looked at George W. 

Bush in the eye, and said that he would work for immigration reform, and then he went to the Senate floor and he killed immigration reform. And then he promised the American people the first 

thing he was going to do as President was going to do immigration 

reform, had a Congress, a House, and a Senate in Democratic 

hands, and did absolutely nothing. 

I think Ms. Hincapie ́ said it right. This has always been a political issue for this President. It has never been a policy issue. 

Thank you very much. 

Mr. MARINO. Congressman Gutierrez is recognized. 

Mr. GUTIERREZ. Thank you, Mr. Chairman. 

As a segue to prosecutorial discretion, I’m just going to sit up 

here. Thank you so much. I didn’t have the good fortune of being 

able to go to law school. I never met Thomas Jefferson or James 

Madison or Ben Franklin or George Washington. I read about 

them. And sometimes the lawyers kind of take us down memory 

lane like they’re your first cousins once removed. 

But not having met any of them, I admit to that, and not having 

gone to law school, so I’m a little not as prepared as the gentlemen 

might be on the questions of law, but I supported and I have 
176 

worked harder than anyone here, at least as hard as or harder 

than anyone here in working with Republicans. And you know 

what? They keep inviting me. They say, it will be next week, Luis, 

and here’s our principles. And then they go, just kidding, I really 

didn’t mean it. 

You know, they keep testing us and teasing us about immigration reform—we’re going to do it, we’re just not ready right now. 

The fact is that the Speaker called the President of the United 

States in June of this year and he said, despite all of your great 

efforts, Mr. President, and mine, we’re not going to call a vote on 

immigration reform. 

So let’s just put aside the fallacy that somehow this is disruptive 

to a system. It’s almost as though you are coming here to tell us, 

oh, we were on the pinnacle of success and had the President not 

acted we’d all be convened here to do comprehensive immigration 

reform. 

The fact is it’s just not reality. So let’s deal with reality. The fact 

is that when you and I and others were working in the Senate to 

pass the bill, we passed a bill here, the Sensenbrenner bill, that 

was immigration reform in the House of Representatives when they 

controlled it, that criminalized every priest, every teacher, every 

doctor. That was the response to the Senate bill. 

So let’s get it very, very clear here. Every time we have sat at 

the table and we have said, look, tell us what it’s going to take, 

they refuse to act. It is now 23 months into the Congress, and we 

have not seen any legislation taken from this Committee to the 

House floor that isn’t taking 800,000 young people and making 

them illegals once again, in the words of my colleagues. 

So not having met any of them, I just want to say that I did meet 

a few other people that I have had the privilege and the honor of 

meeting and working with, so I can’t go back 200, 300 years, or 400 

years, when you guys suggest that prosecutorial discretion was 

well-established in the law. I can go back to November 4 of 1999. 

And here it is. And I’m just going to try to read a little bit of it. 

It says, ‘‘There has been widespread agreement that some deportations were unfair and resulted unjustifiable hardship. If the facts 

substantiate the presentations that have been made to us, we must 

ask why the INS pursued removal in such cases when so many 

other more serious cases existed. We write to you because we believe people, you know, that discretion to alleviate some of the 

hardships.’’ It says, ‘‘The principle of prosecutorial discretion is well 

established. Indeed INS general counsel and regional counsel have 

taken the position, apparently well grounded in case law, that INS 

has prosecutorial discretion in the initiation and determination of 

removal proceedings. Furthermore, a number of principles indicate 

INS has already employed this discretion in some cases. Two hardship cases call for the exercise of such discretion. And over the past 

year, many Members of Congress have urged the INS to develop 

guidelines for the use of prosecutorial discretion.’’ Guidelines for 

the use of prosecutorial discretion. 

Let me just suggest to you, I never met George Washington, Benjamin Franklin. I know you guys like taking us down memory lane, 

right, with the Founders. But I’ll tell you what. I did meet Henry 

Hyde. I did meet Lamar Smith. I did meet Mr. McCollum. I did 
177 

meet all of these gentlemen that have signed this. And let me just 

say that Henry Hyde, Lamar Smith, McCollum, and others that 

have signed this aren’t some open borders kind of friendly to immigrant policy kind of Members of Congress. I think we could suggest 

that. And yet, what did they say? They wrote the Attorney General 

and the INS Commissioner and said prepare guidelines. 

Let me just suggest to you that Idaho has 1.6 million people. We 

deport 400,000 a year. It would take us, if we just spent all of our 

life in Idaho, it would take us the next 4 years. We are not going 

to deport ourselves out of the issue of immigration reform. We are 

going to have to find a solution. And instead of here arguing as 

though we’re the Supreme Court and you guys are some, I don’t 

know, some solicitor generals telling us what is constitutional or 

not constitutional, I think we should roll up our sleeves and begin 

to do the work of fixing the immigration problem because we have 

not put one more person on the border to secure our borders, nor 

will we help one more family. 

And I would just end with this. Mr. Chairman, you know, I didn’t 

go to law school, but it just seems to me that justice is about compassion too. It’s about fairness. It’s about looking and weighing the 

equities that people have. And I think 4 million American citizen 

children we should take into consideration. Because guess what. 

Tonight my grandson, he is going to be taken, and my daughter is 

going to go to his school and go check out his report card. She is 

going to be able to take him to the library, she is going to be able 

to help him with his homework. She is going to be able to do a lot 

of things, take him to soccer. There’s millions of undocumented immigrants that can’t do that for their American citizen children. So 

let’s stop. Nothing has been resolved here. 

Mr. MARINO. The gentleman’s time has expired. 

Mr. GUTIERREZ. Thank you so much, Mr. Chairman. Thank you 

for your indulgence and generosity. 

Mr. MARINO. Congress Collins, you’re next. 

Mr. COLLINS. Thank you, Mr. Chairman. And probably the one 

part I would disagree with my friend just now is the fact that, you 

know, amazingly enough, after a wonderful speech, carried by 

many, that everything was supposed to be solved a couple of weeks 

ago because the President acted. Undoubtedly we’re far from that. 

This is concerning on many levels, and the problem that I have 

with the biggest part here is the fact that this has gotten mixed 

up into immigration and we are using immigration and we are 

using the stories of hardships, and I can understand that. But the 

problem is here, is a fundamental take the issue away. Remove the 

issue. Remove immigration, remove drug enforcement, and just go 

back to the simple idea of what the structure of government is. And 

that’s the problem that I’m having here. 

And also, as a reminder, one, and I heard it mentioned from 

across the aisle that if we had passed bills, in which we had, they 

have never moved out of this Committee, I’m not sure why my 

friends across the aisle were concerned. They didn’t vote for any of 

them in this Committee. So they wouldn’t have worried about them 

on the floor of the House, so I’m not sure why that. 

And also, as my friend from Idaho mentioned just a few moments 

ago, the reason that most of us believe that this is a really political 
178 

issue for this President is because when he chose to overhaul the 

healthcare system, when he chose to go after the big banks, the 

Too Big to Fail, when he chose a lot of other priorities, do you know 

what he didn’t choose as a priority? He did not choose illegal immigrants. He did not choose the immigrant community. He did not. 

So we can complain all we want about differences of opinion and 

what did and did not move. So the issue comes is, now I can do 

it, I’m in my last term, and I don’t like what Congress has or has 

not done. 

My question also is this, and I’m just sitting here pondering this, 

because I did sit through law school and I’m proud that I did sit 

through law school, and I haven’t met George Washington either. 

But the books and stories have told me a lot about how this history 

was founded and the folks who strived to come here, and rule of 

law matters. And if you come from a country in which rule of law 

does not matter, and the reason you are coming is you want to find 

rule of law, what does it say when we’re going to avoid the rule 

of law in this country? Take immigration off of it and just look at 

the balance of power. 

Ms. Hincapie ́, let me just ask a question. You used the term. Define for me policy change. 

Ms. HINCAPIE ́. Policy change? 

Mr. COLLINS. Yes. You use it quite regularly in your brief. 

Ms. HINCAPIE ́. Sure. Under the, again, what the Department of 

Homeland Security has done, it has said in the past we were deporting parents of U.S. citizen children. 

Mr. COLLINS. Is an Executive order policy change or is it prosecutorial discretion? 

Ms. HINCAPIE ́. It’s prosecutorial discretion. 

Mr. COLLINS. So you are saying policy change to not do something would be captured under prosecutorial discretion? 

Ms. HINCAPIE ́. Right. So just technically, the President has not 

issued an Executive order. He has issued Executive actions. All 

these are directives by the Department of Homeland Security identifying what their policies and priorities are—again, completely 

consistent with the Homeland Security Act. 

Mr. COLLINS. In looking at this, take it away, and I know you 

can’t because it’s a cause for you, and I get that. Take immigration 

out of this. 

Ms. HINCAPIE ́. Uh-huh. 

Mr. COLLINS. What is the limit here? And you sort of blew off my 

colleagues who said about tax law and about other things. You 

came across that way. So you just say, well, no, it can’t happen. 

Tell me why it can’t. Because many people who would have said 

in this body 40, 50 years ago on different issues, or even 20 years 

ago, would have sat here and said, well, there’s no way a President 

would just blanketly take a group and just do away with it, in a 

sense, and hide it under here is an outline. Why is it now not conspiracy theory to think that any President, Republican or Democrat, can use this as precedent? 

Ms. HINCAPIE ́. So again, I believe that the President is actually 

following the law, the Constitution statutory, regulatory framework. And what the President has done here is the same that previous Administrations have done. In the future, taking the immi-
179 

gration issue out of this, if it were tax law, if it were environmental, if it were labor employment laws—— 

Mr. COLLINS. Then why didn’t he do it before the election? Why 

didn’t he do it before the election? Why didn’t he do it 6 years ago? 

Because broadly he knew it’s a political issue. He knew it would 

cost his party politically. He chose to go after the election. It’s political. 

Standing, Mr. Sekulow, States. Would you say at least in a short 

answer States have at least a good argument for standing on this? 

Mr. SEKULOW. I would say of the potential plaintiffs, they probably have the best argument. But standing is always a difficult 

task. 

Mr. COLLINS. Very quickly. Also, those who are currently legally 

in line and it is taking forever to process their legal applications 

and now the same officers are going to have to deal with the deferred action program, would they have standing? 

Mr. SEKULOW. Possibly. 

Mr. COLLINS. So they are being hurt. There are damages. That 

is another legal term. Damages have to be found. 

Also, in reference to the gentleman from Illinois, the letter that 

he stated, minor detail here, wasn’t dealing with illegals. It was 

dealing with legal permanent residents and developing a process 

for them. He was not dealing with illegals. It was legal permanent 

residents. 

With that, Mr. Chairman, I yield back. 

Mr. MARINO. The Chair recognizes Congressman Jeffries. 

Mr. JEFFRIES. Thank you, Mr. Chair. And I thank the witnesses 

for their presence here today. Let me just start with Mr. Sekulow. 

There are approximately 11 million undocumented immigrants in 

the country right now, correct? 

Mr. SEKULOW. That’s the number I understand, yes. 

Mr. JEFFRIES. Okay. And Congress appropriates resources to the 

Department of Homeland Security, correct? 

Mr. SEKULOW. Yes, sir. 

Mr. JEFFRIES. And those resources are used in part to undertake 

the deportation of undocumented immigrants, true? 

Mr. SEKULOW. That’s correct. 

Mr. JEFFRIES. Okay. Now, the Department of Homeland Security 

does not have the resources, based on what Congress has allocated 

to it, to deport those 11 million undocumented immigrants, correct? 

Mr. SEKULOW. Absolutely correct. 

Mr. JEFFRIES. Okay. So since we’ve established factually there’s 

no way that DHS can deport 11 million undocumented immigrants 

because it does not have the resources to do so, it’s got to establish 

priorities as it relates to deportation, true? 

Mr. SEKULOW. Absolutely correct. 

Mr. JEFFRIES. Okay. Now, who actually has the authority to establish those priorities? Isn’t it the Secretary of Homeland Security 

and therefore the President who appoints him? 

Mr. SEKULOW. The Secretary of Homeland Security is authorized 

on a case-by-case basis. Prosecutors are authorized on a case-bycase basis. That’s markedly different from a group exemption. 

Mr. JEFFRIES. Right. First of all, this is not a group exemption. 

And I think that has just been a blanket misrepresentation. I think 
180 

many of my colleagues have actually corrected it, but there are at 

least five factors that individuals will have to prove, right? Present 

since 2010. 

Mr. SEKULOW. Right. 

Mr. JEFFRIES. Documentation will be required to demonstrate 

that. 

Mr. SEKULOW. Right. 

Mr. JEFFRIES. You can’t just show up and make that representation. 

Mr. SEKULOW. That puts you in the class. 

Mr. JEFFRIES. Reclaiming my time. I’m not finished. 

Mr. SEKULOW. I’m sorry. 

Mr. JEFFRIES. Qualifying child. You have got to demonstrate 

that. 

Mr. SEKULOW. Correct. 

Mr. JEFFRIES. Birth certificate, perhaps, passport, whatever the 

case might be. 

Mr. SEKULOW. Right. 

Mr. JEFFRIES. Documentation. 

Continuing presence. Again, it’s going to require documentation. 

Four, not an enforcement priority. 

And then five, of course you have to pass a criminal background 

check. 

Mr. SEKULOW. Right. 

Mr. JEFFRIES. Those are all individual factors that will be assessed by the Department of Homeland Security to determine eligibility, correct? 

Mr. SEKULOW. To determine if you’re eligible for the class that 

does not constitute an individual determination. 

Mr. JEFFRIES. Okay. Well, we disagree on that. 

Now, in terms of—sir. 

Mr. SEKULOW. Yes, sir. 

Mr. JEFFRIES. I’m on the dais. You are answering questions. 

Mr. SEKULOW. Yep. 

Mr. JEFFRIES. We appreciate whatever authority you are bringing to this discussion. 

Mr. SEKULOW. I appreciate that. 

Mr. JEFFRIES. But you are not the definitive authority. In fact, 

what the Supreme Court has said, and let’s touch on that, the Arizona v. United States case has been brought up. Are you familiar 

with that case? 

Mr. SEKULOW. Yes, sir. 

Mr. JEFFRIES. And do you believe that this case in any way contributes to the debate as to whether the President has discretion 

to defer deportation? 

Mr. SEKULOW. No. SB 10, the conclusion of the Supreme Court 

was of course that the Federal Government has the authority and 

the States cannot override immigration authority that’s Federally 

enunciated. The Supremacy Clause. 

Mr. JEFFRIES. Right, okay. Justice Kennedy stated in the majority opinion, a principal feature of the removal system is the broad 

discretion exercised by immigration officials. Federal officials as an 

initial matter must decide whether it makes sense to pursue removal at all. Correct? 
181 

Mr. SEKULOW. Yes. 

Mr. JEFFRIES. That’s what Justice Kennedy said. 

Mr. SEKULOW. Federal officials. 

Mr. JEFFRIES. Okay, now, we have already established that the 

resources don’t exist for the Department of Homeland Security to 

remove all 11 million undocumented immigrants, true? 

Mr. SEKULOW. Yes. 

Mr. JEFFRIES. So immigration officials, it seems to me, consistent 

with the Supreme Court decision which was written in 2012 on immigration, not on FDA matters, not on other collateral matters, on 

immigration, establishes clearly that the Department of Homeland 

Security and this President have the ability to make priority determinations related to deportation. Isn’t that clear? 

Mr. SEKULOW. Over a State determination. It involved the constitutionality of SB 10. This is a very different situation, with due 

respect, Congressman, to a situation where there is going to be a 

blanket creation of a class that is now protected outside of congressional authority. The answer to your question is pass a law. 

Mr. JEFFRIES. I agree with that. The President agrees with that. 

Since President Eisenhower in 1956, 39 occasions there has been 

executive action related to deferred enforcement in connection with 

immigration, correct? 

Mr. SEKULOW. Yes. 

Mr. JEFFRIES. Thirty-nine occasions, right? 

Mr. SEKULOW. Yes. 

Mr. JEFFRIES. It happened under Eisenhower and Kennedy related to approximately 900,000 Cubans. 

Mr. SEKULOW. Right. 

Mr. JEFFRIES. It happened under Ford with approximately 

200,000 Vietnamese. It happened under President Reagan, I think 

as it relates to approximately 200,000 Nicaraguans. It happened 

under George Bush 43 as it relates to Liberians. And of course it 

happened under the first President Bush with respect to 1.5 million 

undocumented immigrants, correct? 

Mr. SEKULOW. Yes. 

Mr. JEFFRIES. But you don’t believe this President has the authority? 

Mr. SEKULOW. I’m not sure—I have stated it very clearly, I 

thought, that I’m not convinced in all of those cases. Some of those 

cases were involving foreign policy issues where the President does 

have authority. But I have stated consistently in my testimony that 

I believe that, especially as it related to the situation with President Bush 41, as well as with President Reagan, that I think it is 

constitutionally suspect, as I think this is as well. 

Mr. JEFFRIES. All right, my time is expired. I yield back. 

Mr. MARINO. The Chair recognizes Congressman Gohmert. 

Mr. GOHMERT. Thank you, Mr. Chairman. 

And thank you for being here in this filibuster-style proceeding. 

You have heard the President, his proclamation, and he said 

that, in essence, since Congress didn’t do anything that he had to 

act. And I just want to set the record straight. In July we had a 

bill to deal with border issues that was viscously fought within our 

party and there were massive changes and corrections that were 

made, and if we didn’t have everybody, we had close to everybody 
182 

in the Republican Party vote for the bill, about 10 or 10:30 p.m. 

on Friday night, at the end of July. 

So we did pass a border bill, and I’m hoping whoever advises the 

President will be able to tell him that. But they have got these 

pesky fences between us and getting to the President. I have advised the head of our CIS—and Secret Service was here testifying 

recently—that since we are told fences don’t work on our southern 

border, we really need to remove the fences at the White House. 

If they don’t work, they don’t work, take down the fences at the 

White House. 

But I’ve been perplexed. The President also said that, in essence, 

if you have been violating our laws for 5 years or more, you’re our 

kind of people, we want you here. If you’re new at violating the 

law, you haven’t been violating it for a full 5 years, you’re not our 

kind of people. We want longstanding law breakers. 

Can anybody explain to me why we should have a preference for 

people that violated the law more than 5 years as opposed to 

maybe new lawbreakers? 

Ms. HINCAPIE ́. I’ll take a crack at that. 

Mr. GOHMERT. What’s the advantage of having longstanding law 

breakers? 

Ms. HINCAPIE ́. I think the rationale behind it is that individuals 

who have been here for a long time have deep ties to our community, have U.S. citizen children, are paying taxes, property taxes. 

Many of them are small business owners, et cetera. They’re contributing to the economy in our country in many ways and have 

U.S. citizen children. They’re invested in our country. They want 

to be Americans, but there aren’t any legal channels to do so. And 

because of the conversation we have been having so far about the 

lack of—there are 11 million people. This Administration has been 

deporting more people than any others, any previous Administrations; 2 million people have been deported under the Obama administration. 

Mr. GOHMERT. Okay, so you’re saying that those things don’t 

apply to people that have been here less than 5 years? If you 

haven’t been violating immigration laws for 5 years then you really 

don’t want to be a citizen and you don’t want to have the advantages here? 

Ms. HINCAPIE ́. No, the Administration is simply saying that they 

are going to consider recent entrants a higher level priority. 

Whether I agree with that or not, that’s what the Administration 

has decided on. 

Mr. GOHMERT. Okay. 

Ms. HINCAPIE ́. Their discretion as the executive branch, again, 

under the Homeland Security Act and the appropriations that Congress has provided, it needs to balance a number of factors. So, 

unequovically, the Administration—— 

Mr. GOHMERT. My time is short. And I am just still looking for 

the rationale for saying people who violated the law more than 5 

years or more are our kind of people. But the 5-year figure triggered a remembrance as well. My friend Steve King and I had gone 

to meet with immigration officials in England in recent years. And 

we were told they have a firm standing law in the U.K. That until 

you have paid into their British system for 5 years, you are not en-
183 

titled to any British benefits at all. Would there be a constitutional 

issue that any of you can think of if we were to pass such a law? 

Mr. SEKULOW. No. I think that Congress has the authority—the 

Supreme Court has recognized—the comprehensive authority to set 

standards both for naturalization, the Constitution says that, and 

the Supreme Court has said with regard to immigration, that it 

vests exclusively with Congress. I think you could set standards. 

We have in the past. The country has done that. 

Mr. DUPREE. I completely agree. That is Congress’ job, its prerogative. 

Ms. HINCAPIE ́. Yep, Congress can change the law at any point. 

Mr. GOHMERT. And you wouldn’t see a problem if we passed a 

law like that, you have got to pay into the system for 5 years before 

you can participate? 

Ms. HINCAPIE ́. And I would add that actually the majority of people who are here have been paying into the system. They pay approximately $8 billion, $9 billion into our Social Security system 

every year. 

Mr. GOHMERT. That begs the question, though. There is plenty 

of evidence here lately, like the child tax credit, where people are 

getting much more back than they paid in. But since my time has 

just expired, I would urge lawyers that are in the room, a potential 

area for litigation, since the President thinks he has the constitutional right to do this and he was a constitutional professor in Chicago, it seems like maybe his students have a legitimate class action for their money back. 

I yield back. 

Mr. MARINO. The Chair recognizes Congressman Cicilline. 

Mr. CICILLINE. Thank you, Mr. Chairman. 

I want to first say the witnesses have described this action by 

the President as unilateral, and also claim that the fact that it 

could be removed at any moment somehow undermines its legitimacy. Of course, every Executive order by a President is unilateral. That is the definition of an Executive order. So the notion 

that this is somehow not legitimate because it is unilateral, it 

seems to me a completely specious argument. Similarly, the fact 

that it could be repealed by another President or by this President 

is also the exact same thing when that happens in every single Executive order. 

So I think those arguments that have been advanced by members of this panel are completely specious. I think you would agree, 

Mr. Sekulow, that the President’s executive authority is neither enlarged nor limited by the words of the President. It is actually dictated by the Constitution and by the decisions of the Supreme 

Court of the United States. Correct? 

Mr. SEKULOW. Yeah, but Executive action, though, incorporates 

what the President said, for in this particular case—— 

Mr. CICILLINE. But the constitutionality of the action is not determined by the description by any President. It is by what the 

Constitution permits and by the decisions of the Supreme Court. 

Correct? 

Mr. SEKULOW. Yes. 

Mr. CICILLINE. Okay. So the Supreme Court actually spoke to 

this question in Arizona v. the United States. And they said, A 
184 

principle feature of the removal system is the broad discretion exercised by immigration officials. Federal officials, as an initial matter, must decide whether it makes sense to pursue removal at all. 

They go on to say, Discretion in the enforcement of immigration 

law embraces immediate human concerns. Unauthorized workers 

trying to support their families, for example, likely pose less danger 

than alien smugglers or aliens who commit a serious crime. The equities of an individual case may turn on many factors, including 

whether the alien has children born in the United States, long ties 

to the community, or a record of distinguished military service. 

So the United States Supreme Court in the most recent decision 

about the use of discretion in the context of immigration set forth 

both the right of the Federal Government to exercise prosecutorial 

discretion and even suggested some factors to consider in the exercise of that discretion. 

You have said in your testimony, you keep using the term ‘‘blanket approval.’’ But, in fact, what the President did in his Executive 

order is articulate a series of factors which, if satisfied, would entitle that person to deferral of deportation action. And that means 

an individualized determination as to each of those factors. The 

fact that in fact those are a common set of characteristics doesn’t 

make it a blanket. It makes it they still require an individual caseby-case determination, which is all that is required in the exercise 

of discretion. 

Now, Mr. Dupree, you said in both your written testimony and 

in your testimony today, that what disturbs you is the scale of this 

and also that it is different from past uses by other Presidents because it is not consistent with the will of Congress. Even Mr. 

Sekulow agrees the scale is irrelevant. It is either constitutional or 

not. And, in fact, when you look at scale, it is actually less in scale 

than President Bush’s, which covered 42 percent of undocumented 

people. This covers 35. So the scale argument doesn’t work. 

Secondly, you say that it is inconsistent with the will of Congress, when in fact in President’s Bush’s use of Executive order it 

was in the face of clear express congressional disapproval of what 

Executive order did. And, in this case, President Obama’s acting in 

the absence of an expression of congressional action. So the two 

bases for your argument have been completely undermined. Correct? 

No, this is to Mr. Dupree this is to you. This is your testimony. 

You say here the scale of President Obama’s directive significantly 

exceeds what past Presidents have done. Untrue. You then go on, 

moreover, in prior instances, the executive was acting to implement 

a new statute consistent with the will of Congress. Also not true. 

Mr. DUPREE. I disagree. Let me take scale on first. My view as 

to scale is that if you had an instance in which a President said, 

or the Secretary of Homeland Security said, I am exercising my 

discretion not to remove this one individual, clearly a permissible 

exercise of discretion. 

Mr. CICILLINE. That is not what scale means. You are not talking 

about whether it is done individually. You talk about the scale of 

what is being done here in terms of the quantity or number of individuals followed. The point of it is the scale of this is considerably 

less than even the most recent action by President Bush. And the 
185 

reality is this hearing is not about the authority of the President 

to do this. What we are really doing is delaying action by this Congress in trying to persuade the American people not to pay attention to the fact that this Congress has failed to pass comprehensive 

immigration reform. And rather than having a hearing where we 

are talking about what to do about that, we have a bipartisan bill 

that passed the Senate, that, if it came to the House floor, would 

pass. Instead, we have spent 4 or 5 hours where legal experts can 

pontificate about their own opinion about whether this is permissible, when it is very clear from every legal scholar I have read 

that this is permissible, that there is precedent for it. And I would 

ask unanimous consent to enter into the record a letter from the 

two general counsels of the United States Citizenship and Immigration Service, as well as general counsel for the Immigration and 

Naturalization Service, which conclude that they have studied the 

relevant legal parameters and wish to express their collective view 

that the President’s actions are well within his legal authority. 

And with that, I yield back. 

Mr. MARINO. Without objection. 

The Chair recognizes Congressman DeSantis. 

Mr. DESANTIS. You know, we hear that, well, Congress hasn’t 

acted, so then the President needs to act. But let me ask you, Mr. 

Dupree, because were you in the Bush White House, if Congress 

declines to enact a bill that the President wants, is there anything 

in the text, history, or structure of the Constitution that says that 

because Congress refused to act, that the President’s Article II 

power is somehow augmented where he can go around Congress. 

Mr. DUPREE. No, sir. 

Mr. DESANTIS. That is totally foreign to our system of separated 

powers. Correct? 

Mr. DUPREE. That is correct. Completely antithetical to it. 

Mr. DESANTIS. And Bush would have never said, Well, Congress 

voted down my bill, I am going to go ahead and legalize people on 

my own or grant work permits. Correct? 

Mr. DUPREE. That’s correct. We were faced with virtually the 

same situation as President Obama was faced with, and we acted 

very differently. 

Mr. DESANTIS. And the thing is the House, we actually considered, we did a hearing on this Gang of Eight bill, and it didn’t have 

a lot of support on our side because the Congressional Budget Office said you would have millions of more illegal immigrants under 

that bill. One estimate was 7.5 million more. So that problem was 

not solved at all. The ICE union said it actually made it worse. And 

the Congressional Budget Office actually said that it would lower 

wages and increase unemployment for U.S. citizens. So there was 

a lot of reasons why that was something. And the Senators who 

voted for that, most of them lost this past election year. 

Let me ask you this, Mr. Sekulow, prosecutorial discretion. So I 

am a Federal prosecutor. I may go after the heroin dealer. I am 

probably not going to go after the pot smoker. But what I don’t do 

is issue the pot smoker a permit to where he can then keep smoking pot. And how does this idea of conferring positive benefits on 

somebody fit into the idea of prosecutorial discretion? Yeah, you 

may not have resources. You may have to set priorities about who 
186 

you actually enforce the law against. But where in that doctrine 

does it now come from where you are going to issue a work permit 

and a Social Security number without statutory authority? 

Mr. SEKULOW. Well, the grant of substantive benefit takes it out 

of what is classical prosecutorial discretion. I mean, you are absolutely correct on that. And in the context here, it is one thing to 

do prosecutorial discretion, as you said, on a particular offense in 

a particular case. It is quite another, as you just said, to then 

award a particular benefit. In this particular case, the granting of 

work authorization is a substantive benefit, which is allowed in 

certain circumstances, but this is not one of the categories upon 

which these work permits, if you will, are authorized. That would 

take an act of the United States Congress, because despite 

everybody’s protestations on both sides of this, the reality is there 

has been a creation of a class here. And I would just like to say 

for the record those five criteria are the criteria for determining 

class, not the individual discretion as to whether in fact some 

would be admitted, because that discretion, according to the OLC 

memo, rests completely with the agency, not with the President in 

that sense. 

Mr. DESANTIS. And I was struck by footnote 8 of the OLC opinion, where OLC, when the DACA program was going to be instituted, Obama a year before said he couldn’t do it; they advised him 

orally. They didn’t actually put it in writing, which I thought was 

interesting. And then in the footnote, they say, hey, it’s got to be 

case by case. But the statistics on that is the approval rate is 95- 

plus percent.So how is that case by case if it’s 95-plus percent? I 

think the way it’s been implemented actually conflicts with the 

OLC footnote even on the mini amnesty that was done in 2012. 

Mr. SEKULOW. The structure of our Constitution does not allow 

for government by Executive action only. It requires statutory action from the legislative branch period. Especially on an issue like 

this, where it is in the purview of Congress. 

Mr. DESANTIS. Ms. Hincapie ́, is it your understanding that under 

the President’s new policy, that people who qualify for deferred adjudication will be eligible for Social Security and Medicare benefits? 

Because the White House had said if they pay in, then they will 

receive Social Security. 

Ms. HINCAPIE ́. So under the existing regulations, and I just 

need—because this is related to what one of my colleagues has just 

said—the class that has been created is under the regulations. It 

is a class of aliens who are eligible for work authorization. The regulations, not the Obama administration, have determined, the regulations say individuals who have deferred actions that is 274A.12 

subsection (C)(14), specifically say individuals who have deferred 

action. So that is the class. There is no new class being created. 

Mr. DESANTIS. But Social Security, so they will receive Social Security and Medicare? 

Ms. HINCAPIE ́. So, once they get a work authorization, employment authorization document, they will be eligible—— 

Mr. DESANTIS. And that, obviously, they would not have been eligible for that but for the President’s action. So he is—— 

Ms. HINCAPIE ́. No, but for the immigration regulations and the 

statute. 
187 

Mr. DESANTIS. Right. But that may be the background regulation, but his action to put them into that situation is now. It is my 

understanding that they are not eligible for Obamacare subsidies. 

Is that your understanding? 

Ms. HINCAPIE ́. Right. They are not eligible for Obamacare, nor 

are they eligible for—— 

Mr. DESANTIS. The problem, though, with the Obamacare thing 

is that, yeah, there is not going to be subsidies, but they are actually exempt under is the statute from Obamacare’s employer mandate, which means that they don’t count to that 50 employee limit. 

And so if you have, say, a naturalized U.S. citizen applying for a 

job versus somebody who is illegally in the country, qualifies under 

the President’s Executive order, that business actually, it is about 

a $3,000 discount to hire the person who is here illegally over the 

person who is a U.S. citizen, even if they are naturalized. 

And so, you know, you said that you are an immigrants’ rights 

activist, but it seems what the President’s doing is he is driving a 

wedge between illegal immigrants and legal immigrants. Legal immigrants and naturalized citizens are going to be made worse off 

as a result of this. 

And I yield back. 

Mr. MARINO. Thank you. 

I have not asked my questions. I am going to ask you if you care 

to respond to my question in writing. It doesn’t have to be that 

long. Any of you. I am going to switch gears here. I want to know 

what Congress can do to have the United States Supreme Court 

hear argument on and give parameters or a ruling on Executive orders, executive privilege. I know that we can sue the President, no 

matter who it is, on a case-by-case basis. But my research tells me 

that the Supreme Court has been punting that back to us, saying 

it is a political issue; it is a procedural issue. And I am just hoping 

that sometime perhaps the Supreme Court will take that Executive 

order or executive authority with regard to what we have been seeing with Republican and Democrat Presidents. So if you care to answer that, I would love to read it. 

This concludes today’s hearing. We thank all of our witnesses for 

joining us. I thank you for being so patient. 

Without objection, all Members will have 5 legislative days to 

submit additional written questions for the witnesses or additional 

materials for the record. This hearing is adjourned. Thank you. 

[Whereupon, at 6:14 p.m., the Committee was adjourned.] 

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A P P E N D I X 

MATERIAL SUBMITTED FOR THE HEARING RECORD

List of Material submitted by the Honorable Zoe Lofgren, a Representative 

in Congress from the State of California, and Member, Committee on the 

Judiciary 

Statement of Dr. Samuel Rodriguez, President, National Hispanic Christian Leadership Conference (NHCLC) 

Statement of the Lutheran Immigration and Refugee Service 

Statement on behalf of the Most Reverend Katharine Jefferts Schori, Presiding 

Bishop and Primate of the Episcopal Church 

Statement of the Church World Service (CWS) 

Statement of the AFL-CIO 

News Release from Lee Saunders, President, the American Federation of State, 

County, and Municipal Employees (AFSCME) 

News Release from Randi Weingarten, President, the American Federation of 

Teachers (AFT) 

News Release from the Asian Pacific American Labor Alliance, AFL-CIO (APALA) 

Statement of Stosh Cotler, Chief Executive Office, Bend the Arc: A Jewish Partnership for Justice 

News Release from Rev. Terry Melvin, President, Coalition of Black Trade Unionists 

(CBTU) 

Statement of Daniel Costa, the Economic Policy Institute (EPI) 

News Release from the Communications Workers of America (CWA) 

News Release from Jobs With Justice 

News Release from the Labor Council for Latin American Advancement (LCLAA) 

News Release from the Laborers’ International Union of North America (LiUNA!) 

Statement of the National Education Association (NEA) 

News Release from the United Auto Workers (UAW) 

News Release from Joe Hansen, International President, the United Food and Commercial Workers International Union (UFCW) 

News Release from Leo W. Gerard, International President, the United Steelworkers (USW) 

Statement of Mee Moua, President and Executive Director, Asian Americans Advancing Justice (AAJC) 

Statement of the American Civil Liberties Union (ACLU) 

Statement of the American Immigration Council (AIC) 

Statement of the American Immigration Lawyers Association (AILA) 

Statement of Appleseed 

Statement of Miles Rapoport, President, Common Cause 

Statement of Farmworker Justice 

Statement of the Fair Immigration Reform Movement (FIRM) 

Statement of the Latino Victory Project 

Statement of the Latin America Working Group (LAWG) 

Statement of Charles Kamasaki, the National Council of La Raza (NCLR) 

Statement of One America 

Statement of Andrea Cristina Mercado and Miriam Yeung, Co-Chairs, We Belong 

Together 

Stories compiled by United We Dream 

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